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^/S-^ 


THE   LAW  OF  SALES. 


Volume  II. 


COMMENTARIES 


ON 


THE   LAW  OF   SALES 


AND 


COLLATERAL  SUBJECTS. 


BY 

JEREMIAH    TRAVIS,   LL.B.,  Harv. '66 ; 

Recently  Judge  or  the  High  Couut  of  Justice 

OP  THE 

Canadian  Northwest  Territories  ; 

FiKST-PmzE  Law  Essayist  of  Hakvakd  University  of  1866;    author  of 

"A  Treatise  on  Canadian  Constitutional  Law;"  annotator 

OF   "Parsons  on  Partnership,"  etc. 


IN  TWO   VOLUMES. 

Vol.  n. 


BOSTON: 
LITTLE,  BROWN,  AND  COMPANY. 

TORONTO: 

THE  CARSWELL  CO.,  (Limited). 

1892. 


Copyrifjltt,  1892, 
Bv  Jeremiah   Travis. 


University   Press  : 
John   Wilson   and   Son,  Camhridok,   U.S.A. 


CONTENTS. 


VOLUME  II. 


BOOK  III. 


RAILROADS. 

Part  I.  Station-Agents  fraudulently  signing  Freight 
Receipts  for  Goods  not  received, — as  to  Lia- 
bility OF  Railway  therefor  to  innocent  Third 

Party o 

"     II.      Railway   Contracts    for    through    Carriage    of 
Goods     


Pagbs 

1-74 
75-220 


BOOK  IV. 


STATUTE  OF  FRAUDS. 

Part     I.  What  are  within  the  Statute       

"       II.  Fixtures 

"     III.  Work  and  Labor 

"      rV.  Exchange  or  Barter 

"        V.  Earnest  or  Part-Payment       ........ 

"      VI.  The  Acceptance 

"     VII.  The  Actual  Receipt 

"  VIII.  The  Note  or  Memorandum  in  Writing  .     .     . 

*'      IX.  The  Essential  Requisites  of  the  Memorandum 


221-241 
242-252 
253-264 
265-274 
275-316 
317-435 
436-504 
50;>-583 
584-674 


Index 675 


COMMENTARIES    ON    SALES. 


BOOK   III. 
PART  I. 


RAILWAY  STATION-AGENTS  AND  SHIPMASTERS  FRAUDU- 
LENTLY SIGNING  FREIGHT  RECEIPTS  AND  BILLS  OF 
LADING. 

Erb  V.  The  Great  Western  Railway  Co.  of  Canada  ^  is  a  case 
where  C,  who  was  the  freight-agent  of  the  defendants  at  Chat- 
ham, Ontario,  and  a  partner  in  the  firm  of  B.  &  Co.,  caused 
printed  receipts,  or  shipping-notes,  in  the  form  commonly  used 
by  the  railway  company,  to  be  signed  by  his  name  as  the  com- 
pany's agent,  in  favor  of  his  firm,  B.  &  Co.,  for  flour  which  had 
never  in  fact  been  delivered  to  the  railway  company.  The  re- 
ceipts acknowledged  that  the  company  had  received  from  B.  & 
Co.  the  flour  addressed  to  the  plaintiffs,  and  were  attached  to 
drafts  drawn  by  B.  &  Co. ;  accepted  and  subsequently  paid  by 
plaintiffs.  C.  received  the  proceeds  of  the  drafts,  and  absconded. 
In  an  action  brought  by  the  plaintiffs  against  the  railway  com- 
pany for  the  amount  of  the  drafts,  it  was  held,  by  the  majority 
of  the  court,  that  the  act  of  C.  in  issuing  a  false  and  fraudulent 
receipt  for  goods  never  delivered  to  the  company,  was  not  an  act 
done  within  the  scope  of  his  authority  as  the  company's  agent, 
and  that  the  defendants,  therefore,  were  not  liable. 

It  was  very  strenuously  urged  for  the  plaintiffs  that  the  freight- 
agent  was  acting  within  the  scope  of  his  authority  in  signing  the 
freight  receipts ;  that  the  rule  of  law  applied  to  this  case,  that, 
where  one  of  two  innocent  persons  must  bear  a  loss,  it  should  be 
he  who  by  care  could  have  prevented  the  loss  that  should  bear  it ; 
and  that  a  distinction  exists  between  such  cases  as  this  and  those 
where  shipmasters  sign  bills  of  lading.  There  was,  also,  a  posi- 
tion taken  with  reference  to  a  local  statute  which  it  is  not  neces- 

1  5  S.  C.  of  Can.  R.  179. 
VOL.  n.  1 


COMMENTARIES   ON   SALES. 


[book    III. 


sary  to  consider  here.     Two  of  the  members  of  a  court  of  six 
concurred  in  the  views  of  the  plaintiffs'  counsel. 

The  judgment  of  Ritchie,  C.  J.,  which  is  that  of  the  majority 
of  the  court,  is  very  lengthy,  and  as  the  question  is  one  of  much 
importance,  and  as  the  conclusion  reached  is  one  with  which  we 
agree  (although  not,  by  any  means,  with  all  the  reasoning  the 
judgment  contains,  —  much  of  which  is  fallacious),  we  quote  fully 
from  the  judgment  in  our  note  below. ^ 


1  After  referring,  at  considerable  length, 
to  the  pleadings  and  facts  in  the  case, 
Ritchie,  C.  J.,  proceeds  as  follows  :  "We 
must  then  consider  whether  the  defend- 
ants are  to  be  bound  by  the  acts  of  Car- 
ruthers  as  the  agent,  and  are  to  be  held 
responsible  in  like  manner  as  if  they,  with 
knowledge  that  the  goods  had  not  been 
received  or  shipped,  had  issued  or  directly 
authorized  the  issuing  of  this  receipt  or 
bill  of  lading,  or  after  its  issue  had  acqui- 
esced in  the  act  and  derived  benefit  and 
advantage  therefrom.  The  mere  giving  a 
receipt  for  goods  and  issuing  a  bill  of  lad- 
ing without  any  goods  having  been  re- 
ceived, was  clearly  not  within  the  usual 
scope  of  the  employment  of  a  freight 
agent,  such  as  Carruthers  is  shown  to 
have  been.  It  was  only  when  he  had 
actiaally  received  goods  to  be  shipped  that 
the  giving  a  receipt  and  bill  of  lading  for 
such  goods  was  within  the  usual  scope  of 
his  employment.  It  was  never  within  the 
scope  of  his  employment  that  he  should 
create,  for  his  own  illicit  gain,  as  instru- 
ments of  fraud,  '  false  pretences  of  con- 
tracts having  the  semblance  of  bills  of 
lading.'  Such  bills  of  lading  as  he  issued 
did  not  grow  out  of  any  transaction  be- 
tween T.  Brown  &  Co.  and  defendants,  or 
between  the  plaintiffs  and  defendants,  or 
out  of  the  use  of  the  railway  as  a  means  of 
transportation  by  either  T.  Brown  &  Co., 
or  the  plaintiffs.  They  were  simulated 
bills  of  lading,  the  result  of  the  direct 
fraud  and  forgery  or  deceit  of  T.  Brown 
&  Co.,  by  their  leading  partner,  Car- 
ruthers; and,  if  plaintiffs  accepted  and 
paid  bills  on  the  faith  of  such  documents, 
their  doing  so  was  induced  by  the  act  of 
T.  Brown  &  Co.,  and  not  by  any  act  of 
the  defendants,  either  directly  or  by  Car- 
ruthers as  their  agent,  while  acting  within 
the  scope  of  the  authority  conferred  upon 
him  by  the  defendants.  I  fail  to  see  how 
such  a  wilful  fraud  committed  by  T.  Brown 
&  Co.,  through  their  partner  Carruthers,  on 
plaintiffs,  with  whom  they  were  dealing, 
can  be  considered  an  act  within  Carruthers 's 
agency.  The  authority  of  Carruthers  was 
a  limited  authority.  His  power  and  au- 
thority to  sign  a  bill  of  lading  depended 
on  the  actual  receipt  and  shipping  of  the 


goods.  If  the  fact  on  which  the  author- 
ity depended  did  not  exist,  the  authority 
could  not  exist.  The  cases  of  Grant  v. 
Norway,  10  C.  B.  665 ;  Hubbersty  v. 
Ward,  8  Exch.  330 ;  and  Coleman  7'. 
Riches,  16  C.  B.  104,  appear  to  me  in 
principle  directly  in  point.  In  Grant  v. 
Norway,  10  C.  B.  665,  the  margi*al  note 
is  as  follows  :  '  The  master  of  a  ship  sign- 
ing a  bill  of  lading  for  goods  which  have 
never  been  shipped  is  not  to  be  considered 
as  the  agent  of  the  owner  in  that  behalf, 
so  as  to  make  the  latter  responsible  to  one 
who  has  made  advances  upon  the  faith  of 
bills  of  lading  so  signed.'  During  the 
argument,  Jervis,  C.  J.,  says  :  '  If  the 
master's  authority  is  to  sign  bills  of  lading 
only  upon  receiving  the  goods  on  board, 
the  owner  does  not  hold  him  out  as  his 
agent  until  he  receives  the  goods.'  After 
pointing  out  the  very  large  authority  of  a 
master  of  a  ship,  and  adopting  from  Smith's 
Mercantile  Law  (p.  59)  that  'the  master 
is  a  general  cujent  to  perform  all  things 
relating  to  the  usual  employment  of  his 
ship  ;  and  the  authority  of  such  an  agent 
to  perform  all  things  usual  in  the  line  of 
business  in  which  he  is  employed  cannot 
be  limited  by  anj'^  private  order  or  direc- 
tion not  known  to  the  party  dealing  with 
him,'  asks,  Is  it  then,  usual,  in  the  man- 
agement of  a  ship  carrying  goods  on 
freight,  for  the  master  to  give  a  bill  of 
lading  for  goods  not  put  on  board  ?  For  all 
parties  concerned  have  a  right,  he  says,  to 
assume  that  an  agent  has  authority  to  do 
all  that  is  usual.  He  then  points  out  that 
'  the  very  nature  of  a  bill  of  lading  shows 
that  it  ought  not  to  be  signed  until  the 
goods  are  on  board  ; '  for  it  begins  by  de- 
scribing them  as  shipped.  He  says  :  '  It 
is  not  contended  that  the  captain  had  any 
real  authority  to  sign  bills  of  lading,  un- 
less the  goods  had  been  shipped  ;  nor  can 
we  discover  any  ground  upon  which  a 
party  taking  a  \)i\\  of  lading  by  indorse- 
ment would  be  justified  in  assuming  that 
he  had  authority  to  sign  such  bills,  wheth- 
er the  goods  were  on  board  or  not.'  He 
then  adds  :  '  If,  then,  from  the  usage  of 
trade,  and  the  general  practice  of  ship- 
masters, it  is  generally  known  that  the 
master  derives  no  such  authority  from  his 


PART    I.] 


RAILWAYS. 


Tlie  matter  is  settled  in  England  on  unquestionable  authority. 
The  main  point  involved  is  as  to  the  nature  of  the  agency  of  the 


position  as  master,  the  case  may  be  con- 
sidered as  if  the  party  taking  the  bill  of 
lading  had  notice  of  an  express  limitation 
of  the  authority  ;  and,  in  that  case,  un- 
doubtedly, could  not  claim  to  bind  the 
owner  by  a  bill  of  lading  signed,  when  the 
goods  therein  mentioned  were  never  ship- 
ped.' This  case  was  followed  by  Hub- 
bersty  v.  "Ward  (8  Exch.  330) :  '  The 
master  of  a  vessel  has  no  power  to  charge 
his  owner  by  signing  bills  of  lading  for  a 
greater  quantity  of  goods  than  those  on 
board.'  The  authority  of  Grant  v.  Nor- 
way was  conceded,  but  it  was  attempted 
to  distinguish  this  case  from  Grant  v. 
Norway  ;  but  Pollock,  C.  B.,  deliver- 
ing the  judgment  of  the  court,  says : 
'  We  think  that  when  a  captain  has  signed 
bills  of  lading  for  a  cargo  that  is  actu- 
ally on  board  his  vessel,  his  power  is  ex- 
hausted. He  has  no  right,  or  power,  by 
signing  other  bills  of  lading  for  goods  whicli 
are  not  on  board,  to  charge  his  owner.' 
This  case  was  ^followed  by  Coleman  v. 
Riches  (16  C.  B.  104),  where  the  same 
principle  was  applied  to  the  agent  of  a 
wharfinger,  who  signed  a  receipt  in  the 
usual  form  for  the  delivering  of  corn  at 
defendant's  wharf.  In  the  course  of  the 
argument,  Jervis,  C.  J.,  says  :  'The  au- 
thority of  the  man  was  of  a  limited  char- 
acter. He  was  only  authorized  to  give 
receipts  when  the  wheat  was  actually  de- 
livered." In  delivering  judgment :  'This, 
however,  is  simply  the  case  of  a  wharf- 
inger's receipt  note,  and  that  being  so, 
the  case  is  disposed  of.  Board,  the  de- 
fendant's agent,  had  only  authority  to 
give  receipts  for  goods  which  .had,  in  fact, 
been  delivered  at  the  wharf.  And  again, 
when  Board  gave  a  receipt  for  wheat  which 
had  never  been  delivered  at  the  wharf,  he 
was  not  acting  within  the  scope  of  his 
authority.  He  was  not  acting  for  his 
master,  but  contrary  to  his  duty  and 
against  his  master's  interest.' 

"  With  how  much  more  force  does  this 
reasoning  and  the  conclusions  arrived  at 
in  these  cases  apply  to  the  present  case  ! 
The  authority  of  the  freight  agent  cannot, 
in  my  opinion,  be  compared  in  extent 
with  the  general  authority  of  a  master  of 
a  ship,  who  is  intrusted  with  the  whole 
control  and  management  of  the  property, 
and  that  for  the  most  i)art  in  the  absence 
of  the  owner,  and  when  the  vessel  is  out 
of  his  reach.  Here  the  authority  of  the 
agent  was,  necessarily,  of  a  most  limited 
character.  He  was  to  receive  an<l  shi[), 
and  give  receipts  and  bills  of  lading  for 
goods  actually  received  ajid  shipped. 
Outside   of   this,   he   does   not   appear  to 


have  possessed  any  authority  whatever  ; 
nor  was  any  other  or  greater  authority 
necessary  to  enable  him  to  manage  and 
conduct  that  part  of  the  business  of  de- 
fendants' railway  confided  to  him.  He, 
certainly,  was  not  authorized  to  grant 
receipts  for  goods  unless  the  goods  were 
actually  received,  nor  was  he  empowered 
to  contract  for  the  company  that  goods 
should  be  sent  by  the  company,  when  no 
goods  were  ever  received  by  the  company 
to  be  sent.  Nor,  in  like  manner,  had  he 
any  authority  to  sign  a  bill  of  lading 
declaring  the  property  was  shipped  in 
apparent  good  order,  when  it  never  was 
shijiped,  and  declaring  the  propei-ty  was 
to  be  delivered  in  like  good  order,  when 
there  was  no  property  in  the  possession  of 
the  company  or  of  their  agent  to  be  de- 
livered. It  may  be  even  questioned 
whether  the  general  manager  of  this  rail- 
way could  legally  issue  or  authorize  to  be 
Issued  bills  of  lading  for  goods  never 
received  and  never  shipped,  such  an  act 
being  wholly  inconsistent  with  the  object 
of  a  railway  company,  which  is  incor- 
porated to  transport  goods  delivered  to 
them  for  transportation,  not  to  issue 
feigned  and  fraudulent  receipts  and  bills 
of  lading  for  goods  never  received  to  be 
forAvarded.  Be  this  as  it  may,  it  cannot 
be  doubted  that  every  person  in  business 
who  deals  with  a  railway  company  knows 
that,  in  the  ordinary  aTid  usual  course  of 
business,  no  such  receipts  and  bills  of 
lading  are  ever  given  or  issued  unless  the 
goods  have  been  actually  received  to  be 
shipped,  and  nobody  so  dealing  but  must 
know  that  if  a  freight  agent,  discharging 
the  ordinary  duties  of  a  freight  agent,  did 
give  or  issue  such  receipts  and  bills  of 
lading  without  the  goods  having  been 
delivered,  he  would  be  acting  in  direct 
opposition  to  his  duty  and  in  fraud  of  his 
principals,  and  no  one  would  knowingly 
act  on  a  bill  of  lading  so  issued,  when 
goods  had  never  been  delivered  or  actually 
shipped,  unless  indeed  it  could  be  shown 
that  some  specific  authority  had  been 
given  to  the  agent  outside  of  the  ordinary 
course  of  business,  authorizing  the  sign- 
ing of  siich  documents  without  delivery 
of  the  articles.  I  cannot  conceive  it 
possible,  in  the  usual  course  of  business, 
that  any  business  firm  would  accept  drafts 
on  their  mere  production,  with  bills  ol" 
lading  attached,  without  any  notice  or 
advice,  or  without  anything  indicating 
the  nature  of  the  transaction.  It  is  very 
different  from  the  buying  or  negotiating 
a  bill  of  exchange,  and  the  position  of  a 
holder   for   value   of  a   bill   of   exchange 


COMMENTARIES   ON    SALES. 


[book   III. 


shipmaster,  or  freight-agent  of  the    railroad.      We  think  it   is 
clear  that  the  powers  of   a  freight-agent  of  a  railway  are  cer- 


purcliased  on  the  market  is  %'ery  different 
from  that  of  a  person  accepting  a  bill  of 
exchange  drawn  on  him.  No  one,  I  take 
it,  in  the  usual  and  ordinary  course  of 
business,  draws  on  another  in  whose  hands 
he  has  no  funds,  but  on  the  strength  of 
funds  to  be  supplietl,  without  advising 
that  the  funds  against  which  he  draws 
will  be  forthcoming  ;  and,  therefore,  in  a 
case  like  the  present,  where  the  plaintiff 
alleges  that  the  transaction  originated  on 
a  contract  with  the  drawers,  that  on 
certain  conditions  they  would  accept,  — 
that  is,  on  goods  consigiied  they  would 
advance  by  accepting  drafts,  —  can  it  be 
supposed  that  those  who  were  to  draw 
drew  without  advising  the  shipping  of 
the  goods  and  the  drawing  against  them 
through  the  bank  for  their  value  ?  Can 
it  be  doubted  that  the  acceptance  of  the 
bills  so  drawn  was  on  the  strength  of 
such  advice  rather  than  on  that  of  the 
bill  of  lading  ?  Bills  of  lading  attached 
are  generally  more  for  the  security  of  the 
drawer  than  the  drawee.  It  is  that  the 
goods  shall  not  be  delivered  oyer  until 
the  bills  are  accepted  ;  in  other  words, 
that  the  consignees  shall  not  receive  the 
goods  till  they  have  secured  the  payment 
by  accepting  the  bills  drawn  for  their 
price.  In  this  case  the  transaction  in 
connection  with  the  bills,  with  which  the 
railway  had  nothing  to  do,  was  an  illusion 
and  a  fraud.  The  consideration  on  which 
the  bills  were  drawn,  and  the  consider- 
ation on  which  the  plaintiffs  accepted  the 
bills  never  existed.  The  bills  were  drawn 
against  iiour  to  be  shippeil  and  for  the 
price  of  the  flour,  on  the  sale  of  which  the 
plaintiffs  were  to  make  a  commission. 
The  flour  never  was  shipped.  There 
never  was '  any  property  on  the  sale  of 
which  the  plaintiffs  could  make  a  com- 
mission, and  the  reason  was  that  the 
parties  with  whom  the  plaintiffs  dealt 
deceived  them,  and  have  endeavored  to 
cover  their  deceit  by  transmitting  to  their 
dupes  feigned  documents  as  purporting 
to  have  been  legitimately  issued  by  de- 
fendants' authority.  I  can  only  look  on 
this  as  a  case  of  fraud,  pure  and  simple. 
Carruthers,  in  signing  these  receipts  and 
bills,  was  not  acting  within  the  scope 
of  his  authority,  or  in  the  course  of  his 
employment,  or  for  his  employers'  benefit, 
and  the  company  never  adopted  Car- 
ruthers's  act  or  profited  by  his  fraud. 
Carruthers  had  no  authority  to  make 
statements  or  representations.  He  was 
employed  to  receive  goods,  and,  on  receipt, 
to  give  acknowledgments  therefor  ;  to  ship 
the  goods  so  received,  and,  on  such  ship- 


ment, to  give  bills  of  lading ;  in  other 
words,  to  sign  a  contract  for  their  trans- 
portation and  delivery.  As  said  by 
Cress  well,  J.,  in  Coleman  v.  Riches  (16 
C.  B.  104):  'He  was  not  employed  to 
represent  that  to  be  true  which  he  knew 
to  be  false.'  His  position  was,  as  de- 
scribed by  Crowder,  J.,  in  the  same  case, 
that  'of  a  servant  whose  only  duty  was 
to  give  a  receipt  when  the  goods  had  been 
delivered.'  The  case  we  are  dealing  with 
is,  in  my  opinion,  much  stronger  against 
plaintiffs  than  those  I  have  referred  to,  be- 
cause it  is  quite  impossible  in  this  transac- 
tion to  separate  plaintiffs  from  T.  Brown  & 
Co. ;  and,  equally  impossible  to  separate  T. 
Brown  and  Co.  from  Carruthers,  who, 
unquestionably,  was  the  leading  partner ; 
in  fact,  substantially  the  firm  of  T.  Brown 
&  Co.  ;  and,  therefore,  so  far  ;is  the  de- 
fendants are  concerned,  plaintiffs  must 
be  looked  upon  as,  if  not  identical  with 
Carruthers,  as  immediately  connected  with 
him,  and  cannot  fix  on  the  defendants  a 
liability  growing  out  of  a  breach  of  T. 
Brown  &  Co.'s  contract  with  them  as  set 
out  in  the  declaration,  and  out  of  the 
fraudulent  conduct  of  T.  Brown  &  Co.  in 
drawing  against  goods  they  never  shipped, 
and  fraudulently  transmitting  bills  of 
lading  of  their  own  fraudulent  concoction. 
No  doubt  T.  Brown  &  Co.  were,  by 
reason  of  the  employment  of  their  leading 
member,  enabled  the  more  easily  to  per- 
petrate and  carry  out  successfully  this 
fraud.  Still,  I  think  this  fraud  of  T. 
Brown  &  Co.  in  their  dealings  with  plain- 
tiffs, cannot  be  attributed  to  the  company. 
The  defendants  had  no  knowledge  of  the 
transaction  between  T.  Brown  &  Co.  and 
plaintiffs.  The  falsehood,  fraud,  and 
knowledge  were  on  the  part  of  T.  Brown 
&  Co.,  with  whom  plaintiffs  contracted, 
and  who,  instead  of  shipping  the  flour  to 
plaintiffs,  on  the  security  of  which  the 
advances  were  to  be  made,  and  procuring 
bond  fide  bills  of  lading  or  shipping  re- 
ceipts therefor,  from  defendants,  in  ful- 
filment of  their  contract  with  plaintiffs, 
falsely  and  fraudulently,  by  their  senior 
and  principal  partner,  made  out  a  false 
and  fraudulent  bill  of  lading  or  shipping 
receipt,  purporting  to  be  the  bill  of  lading 
or  the  receipt  of  the  defendants  ;  and, 
thereby,  falsely  and  fraudulently  repre- 
sented to  plaintiffs  that  they  had  fulfilled 
their  contract  and  had  shipped  and  assigned 
to  him  the  flour  in  question,  and  had 
procured  from  defendants  a  bill  of  lading 
and  shipping  receipt  therefor  ;  when  in 
truth  and  in  fact  the  flour  never  had  been 
consigned  and  shipped  to  plaintiffs,  nor 


PART   I.]  RAILWAYS.  5 

tainly  not  greater  to  bind  the  railway  by  a  false  statement  as  to 
the  receipt  of  goods,  alleged  to  have  been  received  by  the  railway, 
than  are  those  of  a  shipmaster,  by  a  similar  false  statement,  to  bind 
the  ship  or  its  owners.  In  both  cases  the  main  ground  upon  which 
it  is  sought  to  clothe  them  with  such  powers  is,  that,  where  one 
of  two  innocent  persons  must  suffer  by  the  fraud  of  a  third,  the 
loss  must  fall  upon  that  one  of  the  two  who,  by  his  placing 
the  thi]-d  in  a  position  of  trust  or  confidence,  enabled  the 
third  person  to  commit  the  fraud.  But  there  is  a  limitation  to 
this  doctrine.  It  is  a  pure  question  of  the  nature  of  the  agency. 
A  principal  "is  liable  only  for  the  fraud  of  the  agent  committed 
within  the  scope  of  his  employment.  Thus,  the  mere  fact  that 
a  merchant. has  clerks  in  his  employment  does  not, . therefore, 
necessarily  clothe  them  with  the  power  to  bind  him  by  their 
acceptances  of  bills  of  exchange,  fraudulently  accepted  by  them 
out  of  the  scope  of  their  employment.  Nor,  where  a  master 
sends  his  servant  to  purchase  goods  for  cash,  and  he  fraudu- 
lently buys  them  on  credit,  is  the  master  bound  by  the  act  of  his 
servant,  without  the  scope  of  his  employment.  So,  as  the  ship- 
master is  only  the  agent  of  necessity  for  the  sale  of  the  ship,  no 
title  to  the  ship  passes  to  the  purchaser  unless  he  can  affirma- 
tively make  out  the  necessity  for  the  sale,  and  thereby  show  that 
the  act  was  done  by  the  master  as  such  agent  of  necessity,  with- 
in the  scope  of  his  employment.  In  the  same  way,  as  the  mas- 
ter is  only  the  agent  of  the  ship  and  owners  to  sign  bills  of  lading 

delivered  to  be  shipped,  and  defendants  Brown  &  Co.,  and  to  which  defendants 
never  had  given  any  bill  of  lading  or  ship-  were  no  party,  acting  as  and  for  the  firm 
ping  receipt  therefor.  This  was  a  roguish  of  T.  Brown  &  Co.,  to  enable  that  firm  to 
transaction  on  the  jiart  of  T.  Brown  &  Co.  raise  money  by  false  and  fraudulent  means 
through  their  senior  and  principal  partner,  and  pretences  in  their  dealings  with  plain- 
whereby  they  sought  and  obtained  ad-  tiffs,  and  that  defendants  are  in  no  wa}"- 
vances  from  the  bank,  not  on  the  strength  responsible  for  a  transaction  of  such  a 
of  flour  consigned  bj'  them  to  plaintiffs,  character,  concocted  for  the  benefit  of 
but  on  the  strength  of  a  false  bill  of  lading  T.  Brown  &  Co.,  and  carried  out  by  Car- 
concocted  by  themselves  ;  handed  to  the  ruthers  wholly  outside  of,  and  apart  from, 
bank  with  a  draft  on  plaintiffs,  which  the  and  contrary  to  his  authority  and  duty  as 
bank,  in  ignorance  of  the  fraud  trans-  freight  agent  of  defendants." 
mitted  to  the  plaintiffs  as  genuine  docu-  There  is  nothing  in  the  dissenting 
ments,  representing  a  real  transaction,  opinion  of  Heni-y,  J.,  with  whom  con- 
namely,  an  actual  shipment  by  T.  Brown  curred  another  of  the  judges,  that  is  worth 
&  Co.,  of  200  barrels  of  flour  to  plaintiffs,  quoting  on  the  subject.  The  jioint  really 
when,  in  fact,  they  never  had  shipped  a  involved  in  the  matter,  that  is,  as  to  how 
baiTel  ;  and,  upon  being  so  transmitted,  far  Carruthers,  as  the  freiglit  agent  of  the 
the  plaintiffs,  in  like  ignorance  of  the  defendants,  having  authority  to  sign  ship- 
fraud,  and  believing  such  documents  rep-  ping  receipts  for  goods  delivered  to  the 
resented  a  bond  fide  transaction,  accepted  railway  for  transjiortation,  could  bind  the 
and  pai<l  the  bill.  By  what  jjrocess  of  defendants,  as  their  agent,  by  signing 
reasoning  can  this  be  said  to  be  a  trans-  receipts  for  goods  not  so  received,  is  not 
action  of  defendants,  or  with  which  de-  discussed  by  him,  and  his  judgment  con- 
fendants  are  in  any  way  connected  in  tains  nothing  of  any  value  in  the  consider- 
the  due  course  of  business?  1  think,  ation  of  the  question  really  involved  in  the 
therefore,  that  Carruthers  was,  in  this  case.  The  statute  which  he  discusses  does 
transaction     between    plaintiffs    and    T.  not  affect  the  question  in  the  slightest. 


6  *  COMMENTARIES    ON    SALES.  [BOOK    III. 

for  goods  actually  received,  no  express  authority  being  given  to 
him  to  act  otherwise,  it  is  no  more  withiu  the  scope  of  his 
employment  to  fraudulently  sign  bills  of  lading  for  goods  not  re- 
ceived than  it  is  within  the  scope  of  his  authority  to  fraudu- 
lently sell  the  ship,  and  thereby  pass  a  good  title  to  the  pur- 
chaser. And  in  this  case  the  purchaser  may  not,  necessarily,  be 
a  party  to  the  fraud,  while,  in  the  case  of  the  fraudulent  bill  of 
lading,  the  party  receiving  it  almost  necessarily  is  a  party  to  the 
fraud.  In  either  case  the  party  committing  the  fraud  is  liable  to 
the  party  injured  by  the  fraud,  and  as  the  reliance  is  (outside  of 
the  reliance  on  the  fraudulent  shipper  and  his  assignees),  but  upon 
his  fraudulent  statement,  made  by  him  without  express  or  implied 
authority, — the  other  party  (the  alleged  principal)  not  acqui- 
escing therein  or  taking  any  benefit  under  it,  —  we  see  no  tangible 
reason  for  holding  that  other  liable  for  a  fraud  to  which  he  has 
been*  no  party,  and  which  he  has  neither  actually  nor  impliedly 
authorized.  The  English  cases  on  the  question  are  in  harmony 
in  establishing  this  doctrine.  The  American  cases  differ  widely. 
But  we  think  that  the  American  cases  which  are  not  in  accord 
with  the  view  here  expressed,  are  not  so  because  they  have  lost 
sight  of  the  special,  limited  character  of  the  agency,  and  have,  by 
the  application  of  very  broad  principles,  enlarged  the  powers  of 
such  agents  far  beyond  the  scope  of  their  employment.  It  is  one 
thing  to  hold  a  party  liable  for  his  own  fraud,  and  quite  another 
to  hold  a  second  party  liable  for  such  fraud,  who  has  neither 
expressly  nor  impliedly  authorized  its  commission ;  has  not  acqui- 
esced in  it,  nor  taken  any  benefit  under  it ;  nor  has,  by  any  act 
on  his  part,  empowered  the  wrong-doer  to  commit  such  fraud. 
That  there  are  cases  of  agency  more  or  less  analogous  to  these 
we  are  considering,  where  the  principals  have  been  held  liable  for 
the  fraudulent  acts  of  their  agents,  committed  within  the  scope 
of  their  employment,  may  well  be  ;  and  yet,  in  these  cases  we 
are  more  particularly  considering,  the  principals  not  be  liable  for 
fraudulent  misrepresentation  by  their  agents  of  a  fact,  unauthor- 
ized by  their  principals  actually  or  impliedly,  and  with  which 
they  have  not  acquiesced,  nor  derived  any  benefit  therefrom.  We 
examine  some  of  the  authorities. 

In  A.  D.  1734,  the  doctrine  was  stated,  on  the  authority  of  Mid- 
dleton  V.  Fowler,^  that  "  the  owner  of  a  ship  is  to  be  considered  a 
general  master,  and  the  master  as  his  servant ;  a  master  is  not 
answerable  for  the  acts  of  his  servant,  but  where  he  acts  in  exe- 
cution of  any  authority  given  him  by  the  master."  ^     And  it  was 

1  Salk.  282;  Skin.  625.  ^  Boucher    v.     Lavvson,     Cas.     temp. 

Hardw.  87,  arguendo. 


PART   I.]  RAILWAYS.  7 

unanimously  decided  by  the  court  that  the  owner  was  not  liable 
in  that  case  for  the  act  of  the  shipmaster,  where  the  act  of  the 
master  was  without  the  authority  of  the  owner,  and  did  not  inure 
to  the  benefit  of  the  latter.  The  doctrine  laid  down  by  the  court 
is  wide  enough  to  cover  the  very  case  we  are  now  considering. 
Thus  :  "  Owners  can  never  be  liable  but  in  respect  of  the  delivery 
of  goods  to  a  ship  trading  for  hire,  where  the  delivery  to  the  master 
is  a  delivery  to  the  owners,  and  where  the  owners  can  in  respect  of 
such  delivery  have  an  action  for  the  freight ;  for  you  must  show  a 
benefit  accruing  to  the  person  against  whom  you  bring  your  ac- 
tion, or  else  a  special  undertaking."  Boucher  v.  Lawson  (second 
decision).^  A  fortiori,  there  can  be  no  action  against  the  owner 
where  there  is  no  "  special  undertaking  "  by  him,  where  the  goods 
have  never  been  delivered  to  the  master  at  all.  This  decision 
has,  apparently,  escaped  the  notice  of  all  the  courts,  in  their 
consideration  of  this  question  in  recent  times.  So,  in  Middleton 
V.  Fowler  (a.  d.  1696),^  in  holding  that  the  master  of  a  stage- 
coach was  not  chargeable  for  goods  lost  by  the  driver,  unless 
the  master  takes  a  price  for  the  carriage  of  the  goods,  the  same 
doctrine  was  laid  down  by  Holt,  C.  J. ;  "  for  no  master  is  charge- 
able with  the  acts  of  his  servant,  but  when  he  acts  in  execution  of 
the  authority  given  by  his  master,  and  then  the  act  of  the  servant 
is  the  act  of  the  master."  The  authorities  for  this  holding  are 
almost  innumerable.^ 

In  Lickbarrow  v.  Mason,*  Buller,  J.,  intimates  that  in  such  a 
case  it  is  the  master  who  would  be  liable,  implying  that  there 
would  be  no  other  liability,  thus  :  "  An  argument  was  used  with 
respect  to  the  difficulty  of  determining  at  what  time  a  bill  of  lad- 
ing shall  be  said  to  transfer  the  property,  especially  in  a  case 
where  the  goods  were  never  sent  out  of  the  merchant's  warehouse 
at  all.  The  answer  is,  that  under  those  circumstances,  a  bill  of 
lading  could  not  possibly  exist,  if  the  transaction  were  a  fair  one ; 
for  a  bill  of  lading  is  an  acknowledgment  by  the  captain  of  having 
received  the  goods  on  board  his  ship.  Therefore,  it  woidd  be  a 
fraud  in  the  captain  to  sign  such  a  bill  of  lading  if  he  had  not 
received  goods  on  board ;  and  the  consignee  would  be  entitled 
to  his  action  against  the  captain  for  the  fraud."  Here  it  is 
treated  as  the  fraud  of  the  captain ;  not  that  of  the  shipowners. 
The  case  of  Osey  v.  Gardner  ^  points  in  the  same  direction.  There 
A.  had  some  rum  in  the  West  India  docks,  which  he  sold  to  B. 
The  rum  was  to  be  shipped  by  A.  in  a  vessel  chartered  by  B. 

1  Cas.  temp.  Hardw.  194,  200.  *  2  T.  R.  63,  75. 

2  Skin.  625;  Salk.  282.  5  Holt,  405. 
"  See  a  large  number  of  cases  cited  in 

Skinner,  625. 


8  COMMENTAEIES   ON    SALES.  [BOOK   III, 

Before  the  rum  was  delivered  on  board  the  vessel,  B.  got  a  bill  of 
lading  from  the  captain.  He  then  sold  the  rum  to  C,  who  paid 
B,  for  it  upon  an  indorsement  of  the  bill  of  lading.  A.  being  un- 
paid, and  suspecting  the  solvency  of  B.,  took  part  of  the  rum  for- 
cibly out  of  the  vessel,  and  countermanded  the  delivery  of  the 
rest.  In  trover,  by  C.  against  A.,  to  recover  the  rum,  the  court 
held  that,  under  the  circumstances  of  the  case,  the  bill  of  lading 
transferred  no  property  to  the  plaintiffs,  on  the  ground  that  no 
goods  having  been  on  board  at  the  time  the  captain  signed  the 
bill  of  lading,  it  was  fraudulent. 

In  an  Irish  case  ^  (a.  d.  1834),  where  a  bill  of  lading  was  signed 
before  the  goods  were  shipped,  it  was  held  that  the  bill  of  lading 
was  fraudulent  and  void,  and  that  the  assignee  under  the  bill  of 
lading  could  not  maintain  trover  for  the  goods,  the  possession 
of  which  had  been  obtained  under  an  attachment  by  the  vendor 
of  the  assignor  of  the  "  fraudulent  and  void  "  bill  of  lading. 

In  Berkeley  v.  Watling,^  Patteson,  J  ,  asked  :  "  Is  there  any  in- 
stance of  an  action  by  a  consignee  of  a  bill  of  lading  before  the 
actual  delivery  of  the  goods  ?  "  and  counsel  for  the  consignee  ad- 
mitted that  there  was  no  instance  of  such  an  action  reported. 
And  Patteson,  J.,  then  stated  the  other  alternative  :  Suppose 
the  consignor  had  brought  the  action,  how  could  the  bill  of  lading 
be  conclusive  in  his  favor  ?  The  fact  would  be  within  his  own 
knowledge.  Then,  how  does  the  consignee  become  a  party,  ex- 
cept by  making  the  consignor  his  agent  ?  To  which  it  was  claimed 
by  counsel  for  the  contesting  owner :  "  That  objection  is  conclu~ 
sive ;  the  defendants  are  sued  only  as  shipowners  hy  the  party 
who  puts  himself  in  the  place  of  consignor.''^  And  in  this  case  it 
was  held  that  the  consignee  ^  could  not  recover  against  the  ship- 
owners, under  a  bill  of  lading  which  alleged  that  goods  were 
shipped,  which,  in  fact,  were  not  shipped,  leaving  the  question 
open  as  to  the  conclusiveness  of  a  bill  of  lading  between  a  ship- 
owner and  an  indorsee  for  value ;  with  the  expression  of  opinion 
by  Littledale,  J.,  that  the  bill  of  lading  in  such  case  is  not 
conclusive. 

In  Bates  v.  Todd,*  it  was  also  held,  by  Tindal,  C.  J.,  that  a  bill 
of  lading  is  not  conclusive  between  the  shippers  of  the  goods  and 
the  owners  of  the  ship  ;  but  the  owners  may  show  that  less  goods 
than  specified  in  the  bill  of  lading  were  shipped,  the  master  hav- 
ing been  misled  as  to  the  quantity. 

Grant  v.  Norway^  (a.d.  1851)  is  the  leading  English  authority  on 

1  Begbie  v.  Clarke,  Cooke  &  Alcock,  ^  See  Armour  v.  Miclucjan  Central  R.  R. 
150.                                                                   Co.,  65  N.  Y.  Ill,  stated  infra. 

2  7  A.  &  E.  29,  35.  .  «  1  Moo.  &  R.  106. 

5  10  C.  B.  665. 


PART    I.]  RAILWAYS.  9 

the  question.  It  was  there  held  by  the  whole  court  that  the  mas- 
ter of  a  ship  signing  a  bill  of  lading  for  goods  which  have  never 
been  shipped,  is  not  to  be  considered  as  the  agent  of  the  owner  in 
that  behalf,  so  as  to  make  the  latter  responsible  to  one  who  has 
made  advances  upon  the  faith  of  bills  of  lading  so  signed.  Jer- 
vis,  C.  J.,  in  delivering  the  judgment  of  the  whole  court,  thus  dis- 
cusses the  question :  — 

"  The  point  presented  by  the  several  pleas  is  substantially  one 
and  the  same,  viz. :  whether  the  master  of  a  ship,  signing  a  bill 
of  lading  for  goods  which  have  never  been  shipped,  is  to  be  con- 
sidered as  the  agent  of  the  owner  in  that  behalf,  so  as  to  make 
the  latter  responsible.  The  authority  of  the  master  of  a  ship  is 
very  large,  and  extends  to  all  acts  that  are  usual  and  necessary  for 
the  use  and  enjoyment  of  the  ship ;  but  is  subject  to  several 
well-known  limitations.  He  may  make  contracts  for  the  hire  of 
the  ship,  but  cannot  vary  that  which  the  owner  has  made.  He 
may  take  up  money  in  foreign  parts,  and,  under  certain  cir- 
cumstances, at  home,  for  necessary  disbursements  and  for  re- 
pairs, and  bind  the  owners  for  repayment ;  but  his  authority  is 
limited  by  the  necessities  of  the  case,  and  he  cannot  make  them 
responsible  for  money  not  actually  necessary  for  those  purposes, 
although  he  may  pretend  that  it  is.  He  may  make  contracts  to 
carry  goods  on  freight,  but  cannot  bind  his  owners  by  a  contract 
to  carry  freight  free.  So,  with  regard  to  goods  put  on  board,  he 
may  sign  a  bill  of  lading  and  acknowledge  the  nature  and  quality 
and  condition  of  the  goods.  Constant  usage  shows  that  masters 
have  that  general  authority ;  and,  if  a  more  limited  one  is  given, 
a  party  not  informed  of  it  is  not  affected  by  such  limitation.  Is 
it  then  usual,  in  the  management  of  a  ship  carrying  goods  on 
freight,  for  the  master  to  give  a  bill  of  lading  for  goods  not  put  on 
board  ?  for  all  parties  concerned  have  a  right  to  assume  that  an 
agent  has  authority  to  do  all  which  is  usual.  The  very  nature 
of  a  bill  of  lading  shows  that  it  ought  not  to  be  signed  until 
goods  are  on  board ;  for  it  begins  by  describing  them  as  shipped. 
It  was  not  contended  that  such  a  course  is  usual.  It  is  not  con- 
tended that  the  captain  had  any  real  authority  to  sign  bills  of  lad- 
ing unless  the  goods  had  been  shipped  ;  nor  can  we  discover  any 
ground  upon  which  a  party  taking  a  bill  of  lading  by  indorsement 
would  be  justified  in  assuming  that  he  had  authority  to  sign  such 
bills,  whether  the  goods  were  on  board  or  not.  If,  then,  from  the 
usage  of  trade,  and  the  general  practice  of  shipmasters,  it  is  gen- 
erally known  that  the  master  derives  no  such  authority  from  his 
position  as  master,  the  case  may  be  considered  as  if  the  party  tak- 
ing the  bill  of  lading  had  notice  of  an  express  limitation  of  the 


10  COMMENTARIES   ON   SALES.  [BOOK    III, 

authority  :  and,  in  that  case,  undoubtedly,  he  could  not  claim  to 
bind  the  owner  by  a  bill  of  lading  signed,  when  the  goods  therein 
mentioned  were  never  shipped.  It  would  resemble  the  case  of 
goods  or  money  taken  up  by  the  master  under  pretence  that  they 
were  wanted  for  the  ship,  when  in  fact  they  were  not ;  or  a  bill 
of  exchange  accepted  or  indorsed  per  proeuration,  when  no  such 
agency  existed;  Alexander  v.  Mackenzie.'  The  words  'per  proc- 
uration '  give  notice  to  all  persons  that  the  agent  is  acting  under 
a  special  and  limited  authority  ;  and,  therefore,  the  party  taking 
such  a  bill  has  to  establish  the  existence  of  the  authority.  It  is 
not  enough  to  show  that  other  bills  similarly  accepted  or  indorsed 
have  been  paid,  although  such  evidence,  if  the  acceptance  were 
general,  by  an  agent  in  the  name  of  the  principal,  would  be  evi- 
dence of  a  general  authority  to  accept  in  the  name  of  the  princi- 
pal. So,  here,  the  general  usage  gives  notice  to  all  people  that 
the  authority  of  the  captain  to  give  bills  of  lading  is  limited  to 
such  goods  as  have  been  put  on  board  ;  and  a  party  taking  a  bill 
of  lading,  either  originally/  or  by  indorsement,  for  goods  which  have 
never  been  put  on  board,  is  bound  to  show  some  particular  au- 
thority given  to  the  master  to  sign  it." 

We  have  set  out  this  judgment  thus  fully :  first,  because  it  is  the 
leading  case  on  the  subject,  secondly,  because  we  agree  with  it; 
and  thirdly,  because  it  has  been  violently  attacked  by  at  least  one 
authority  in  this  country,^  with  which  we  do  not  agree. 

In  Hubbersty  v.  Ward,^  the  principle  of  Grant  v.  Norway  ^  was 
followed,  and  it  was  held  that  the  master  of  a  vessel  has  no  power 
to  charge  his  owner  by  signing  bills  of  lading  for  a  greater  quan- 
tity of  goods  than  those  on  board.  Pollock,  C.  B.,  said  :  "  If  the 
master  cannot  sign  bills  of  lading  for  goods  not  on  board,  it  fol- 
lows that  he  cannot  sign  for  a  greater  quantity  than  are  on  board. 
When  once  he  has  signed  to  the  extent  of  the  goods  on  board,  his 
authority  quoad  those  goods  is  gone."  And,  in  delivering  judg- 
ment :  "  We  think  that,  when  a  captain  has  signed  bills  of  lading 
for  a  cargo  that  is  actually  on  board  his  vessel,  his  power  is  ex- 
hausted. He  has  no  right  or  power,  by  signing  other  bills  of  lad- 
ing for  goods  that  are  not  on  board,  to  charge  his  owner." 

In  Coleman  v.  Riches,^  the  same  principle  was  applied  to  the 
case  of  a  warehouse  receipt,  fraudulently  signed  by  the  wharfin- 
ger's servant.  It  was  there  laid  down  that  a  master  is  civilly 
responsible  for  the  fraud  or  negligence  of  his  servant  acting  in 
the  course  of  his  employment,  but  not  for  an  act  of  wilful  fraud 
or  negligence  done  by  him  out  of  the  scope  of  his  authority,  or 

1  6  C.  B.  766.  4  10  C.  B.  665. 

2  Stated  and  considered,  infra.  ^  16  C.  B.  104. 
8  8  Ex.  330. 


PART    r.]  RAILWAYS.  11 

inconsistent  with  the  course  of  his  employment.  Therefore, 
where  A.,  the  servant  of  a  wharfinger,  fraudulently  signed  a 
receipt  purporting  to  be  an  acknowledgment  that  certain  wheat 
had  been  delivered  at  his  employer's  wharf,  to  be  shipped  to  the 
order  of  C ,  no  such  wheat  having,  In  fact,  been  delivered,  and 
thereby  wilfully  induced  C.  to  pay  the  price  thereof  to  the  pre- 
tended vendor,  it  was  held  that  the  wharfinger  was  not  liable  ; 
although  it  was  proved  that  C.'s  course  of  dealing  was  to  pay  for 
all  wheat  delivered  for  him  at  the  wharf,  on  the  production  by  the 
vendor  of  the  wharfinger's  receipt,  and  that  the  latter  knew  it. 
In  this  case  Williams,  J.,  said  :  "  I  do  not  feel  at  all  inclined  to 
dissent  from  the  doctrine  in  Story  on  Agency,  §  456,  where  it  is 
laid  down  that  '  the  principal  is  not  liable  for  the  torts  or  negli- 
gences of  his  agent  in  any  matters  beyond  the  scope  of  his  agency, 
unless  he  has  expressly  authorized  them  to  be  done,  or  he  has 
subsequently  adopted  them  for  his  own  use  or  benefit,'  Assum- 
ing that  to  be  good  law,  the  question  is,  whether  the  act  of  Board 
in  respect  of  which  responsibility  is  here  sought  to  be  cast  on  the 
defendant,  was  an  act  done  by  him  in  the  course  or  within  the 
scope  of  his  employment.  I  think  we  cannot  so  hold  without  de- 
parting from  the  decision  of  this  court  in  Grant  v.  Norway.  It  is 
said  that  that  case  is  distinguishable  from  the  present,  because  it 
was  put  upon  the  ground  of  the  general  understanding  of  the  com- 
mercial world.  There  is  no  commercial  usage  or  understanding 
that  the  fact  of  goods  being  put  on  board  shall  be  treated  as  an 
incontrovertible  fact  merely  by  reason  of  the  master's  having 
signed  a  bill  of  lading.  So,  here,  1  see  no  ground  upon  which 
the  plaintiff  could  be  justified  in  assuming  as  an  incontestable 
truth  that  the  wheat  had  been  delivered  by  Lewis  at  the  defend- 
ant's wharf,  because  the  fact  was  so  stated  in  the  receipt." 

The  cases  of  Reynolds  v.  Jex,*  The  Sir  Henry  Webb,^  Dewell 
V.  Moxon,^  Walshe  v.  Provan,^  all  show  similar  limitations  on  the 
power  of  the  master  to  bind  the  owners,  within  the  strict  scope  of 
his  employment,  in  cases  where  he  has  had  no  express  authority 
to  act  otherwise,  and  where  the  courts  refused  to  hold  he  had  an 
implied  one. 

In  The  Sir  Henry  Webb,^  which  was  decided  prior  to  Grant  v. 
Norway,^  Dr.  Lushington  laid  down  principles  similar  to  those 
which  governed  the  court  in  deciding  the  latter  case.  In  The 
Sir  Henry  Webb,  freight  brought  into  the  registry  was  claimed, 
first,  by  M.  &  Co.,  under  a  charter-party  entered  into  at  Malta, 
between  the  master  and  them,  and  with  the  view  of  securing  to 

1  7  B.  &  S.  86.  4  8  Ex.  843. 

2  13  Jur.  639.  6  13  j„r.  639. 

3  1  Taunt.  391.  6  10  C.  B.  665. 


12  COMMENTARIES   ON   SALES.  [BOOK    III. 

them  the  payment  of  a  debt  from  the  shipowner ;  secondly^  by 
certain  mortgagees  of  the  ship,  under  an  assignment  of  freight 
by  the  master  for  advances  on  the  ship's  account ;  thirdly,  by 
the  assignees  of  the  owner.  It  was  held  that,  first,  the  master 
had  no  authority  to  bind  his  owner  by  the  charter-party  ;  sec- 
ondly, nor  to  make  the  assignment  of  freight ;  and  consequently, 
tliirdly,  the  assignees  were  entitled  to  the  fund  in  the  registry. 
In  so  deciding.  Dr.  Lushington  said  :  "  The  first  question  is,  had 
the  master  any  power  to  enter  into  such  a  charter-party.  It  is 
perfectly  true  that  the  master  is  the  agent  of  the  owner,  for  the 
purpose  of  enabling  him  to  carry  on  the  trade  in  which  the  ship 
is  usually  engaged  ;  but  it  is  not  competent  to  the  master,  or  to 
anybody,  to  assume  to  himself  any  other  authority  than  the  indis- 
pensable and  necessary  one  of  procuring  a  freight  for  the  vessel, 
according  to  the  ordinary  terms.  He  has  no  right  whatever  to 
give  creditors  resident  at  Malta  a  prior  right  of  payment,  without 
the  authority  of  his  principal.  I  have,  therefore,  no  hesitation  in 
saying,  that  I  do  not  consider  this  charter-party  to  have  been 
framed  under  adequate  authority,  and  if  the  master  has  exceeded 
his  authority,  his  act  cannot  be  binding  on  the  owner,  and  un- 
questionably not  upon  the  assignees  of  the  owner  in  this  case." 

Jessel  V.  Bath  ^  is  to  the  same  effect.  The  question  came  up  under 
the  English  Bills  of  Lading  Act,^  which  enacts  that  every  bill  of 
lading  in  the  hands  of  a  consignee  or  indorsee  for  valuable  consid- 
eration, representing  goods  to  have  been  shipped  on  board  a  vessel, 
shall  be  conclusive  evidence  of  such  shipment  against  the  master  or 
other  person  signing  the  same,  notwithstanding  that  such  goods,  or 
some  part  thereof,  may  not  have  been  so  shipped.  The  defendants 
were  charterers  of  a  steamship  engaged  in  the  Mediterranean  trade, 
and  had  ship's  agents  or  consignees  at  the  port  of  call.  It  is  the 
custom  for  a  ship's  agent  or  consignee  to  sign  bills  of  lading  in- 
stead of  the  master,  and  no  difference  is  recognized  in  trade  usage 
between  the  efficacy  of  his  signature  and  that  of  the  master.  The 
defendant's  agents  at  Genoa  signed  a  bill  of  lading  for  manga- 
nese, shipped  in  bulk  and  not  weighed  at  the  time  of  shipment, 
which  described  the  manganese  as  of  a  certain  weight.  The 
plaintiff  was  assignee  for  full  value  of  this  bill,  and  the  whole 
of  the  manganese  was,  on  tlie  arrival  of  the  ship,  delivered  to 
him,  but  was  found  to  be  short  of  the  weight  stated  in  the  bill. 
In  an  action  brought  by  him  to  recover  damages  for  non-delivery 
of  the  full  weight,  it  was  held,  that  the  defendants  were  not 
bound  by  the  signature  of  their  agents  to  a  bill  of  lading  for  a 
greater  quantity  than  was  actually  shipped.     Bramwell,  B.,  suc- 

1  L.  R.  2  Ex.  267.  2  ig  &  19  yic.  c.  Ill,  §  3. 


PART    I.]  RAILWAYS.  13 

cinctly  puts  the  matter  thus :  "  At  common  law  the  defendants 
would  not  be  liable  on  this  bill,  because,  although  Messrs.  Barchi 
were  their  agents  to  conduct  their  business,  they  were  not  their 
agents  to  make  an  admission  contrary  to  the  fact,  by  signing  a 
bill  of  lading  for  a  quantity  they  knew  nothing  of.  Then,  does 
the  statute  make  any  difference  ?  I  think  not.  It  seems  to  me 
only  to  mean  that  the  person  actually  signing  the  bill  of  lading 
shall  be  liable.  If,  for  instance,  an  owner  had  signed,  it  would 
be  conclusive  against  him,  but  it  would  not  he  so  against  the  other 
owners.  If,  then,  the  bill  of  lading  is  only  conclusive  against  the 
person  actually  signing,  the  defendants,  not  being  the  signers  of 
the  bill  in  question,  are  not  made  liable  by  the  statute."  ^ 

The  main  ground  upon  which  it  is  claimed  that  the  shipowner 
is  liable  in  such  a  case  is  that  of  estoppel.  This  question  is 
dealt  with  in  several  of  the  cases  which  we  have  cited,  and  in  Cox 
V.  Bruce  ^  (a.  d.  1886)  among  others.  In  this  case,  a  bill  of  lad- 
ing signed  by  the  captain  of  a  ship  in  respect  of  a  shipment  of 
bales  of  jute  contained  the  following  provision  :  "  If  quality  marks 
are  used,  they  are  to  be  of  the  same  size  as  the  leading  marks 
and  contiguous  thereto  ;  and  if  such  quality  marks  are  inserted 
in  the  shipping  notes,  and  the  goods  are  accepted  by  the  mate, 
bills  of  lading  in  conformity  therewith  shall  be  signed  by  the 
captain,  and  the  ship  shall  be  responsible  for  the  correct  delivery 
of  the  goods."  The  bill  of  lading  described  the  bales  as  marked 
in  proportions  specified  with  different  quality  marks,  indicating 
different  qualities  of  jute,  which  marks  corresponded  with  those 
inserted  in  the  shipping  notes  made  out  by  the  shippers.  When 
the  ship  was  discbarged,  however,  it  was  found  that  there  had 
been  shipped,  in  fact,  fewer  bales  marked  with  one  of  such  quality 
marks  and  more  marked  with  another  of  such  marks,  indicating 
an  inferior  quality,  than  stated  in  the  bill  of  lading.  It  was  held, 
on  these  facts,  that  an  indorsee  of  the  bill  of  lading  for  value, 
without  notice  of  the  incorrectness  of  the  description  of  the  marks 
therein,  had  no  right  of  action  against  the  sliipowners,  either  for 
breach  of  contract  or  upon  the  ground  that  they  were  estopped 
by  the  representation  contained  in  the  bill  of  lading.  Lord  Eslier, 
after  dealing  in  this  case  with  the  question*  of  contract  arising 
out  of  the  memorandum  in  the  bill  of  lading,  proceeded :  "  But 
then,  it  is  said  that,  because  the  plaintiffs  are  indorsees  for  value 
of  the  bill  of  lading  without  notice,  they  have  another  right,  — 

^  Leboan  v.  General  Steam  Nav.  Co.,  the   Court  of  Appeal  afTirminfr  the  judg- 

L.  R.  8  C.  P.  88  ;  Blanchets  v.  Powell's  ment  of  the  Queen's  Bench  Division,  are 

Llantrioit  Collieiies  Co.,  Ij.  R.  9  Ex.  74  ;  in  accord  with  the  previous  cases  stated. 
McLean  v.   Fleming,   L.  R.   2   So.  &    D.  2  is  Q.  B.  Div.  147,  151. 

123  ;  Cox  V.  Bruce,  18  Q.  B.  Div.  147, 


14  COMMENTARIES   ON    SALES.  [BOOK    III. 

that  they  are  entitled  to  rely  on  a  representation  made  in  the  bill 
of  lading  that  the  bales  bore  such  and  such  marks,  and  that  there 
is  consequently  an  estoppel  against  the  defendants.  That  raises 
a  question  as  to  the  true  meaning  of  the  doctrine  m  Grant  v.  Nor- 
way.^ It  is  clearly  impossible,  consistently  with  that  decision,  to 
assert  that  the  mere  fact  of  a  statement  being  made  in  the  bill  of 
lading  estops  the  shipowner,  and  gives  a  right  of  action  against 
him  if  untrue,  because  it  was  there  held  that  a  bill  of  lading 
signed  in  respect  of  goods  not  on  board  the  vessel  did  not  bind 
the  shipowner.  The  ground  of  that  decision,  according  to  my 
view,  was  not  merely  that  the  captain  has  no  authority  to  sign 
a  bill  of  lading  in  respect  of  goods  not  on  board,  but  that  the 
nature  and  limitations  of  the  captain's  authority  are  well  known 
among  mercantile  persons,  and  that  he  is  only  authorized  to 
perform  all  things  usual  in  the  line  of  business  in  which  he  is 
employed.  Therefore  the  doctrine  of  that  case  is  not  confined 
to  the  case  where  the  goods  are  not  put  on  board  the  ship. 
That  the  captain  has  authority  to  bind  his  owners  with  regard 
to  the  weight,  condition,  and  value  of  the  goods  under  certain 
circumstances  may  be  true ;  but  it  ai)pears  to  me  absurd  to  con- 
tend that  persons  are  entitled  to  af^sume  that  he  has  authority, 
though  his  owners  really  gave  him  no  such  authority,  to  estimate 
and  determine  and  state  on  the  bill  of  lading,  so  as  to  bind  his 
owners,  the  particular  mercantile  quality  of  the  goods  before 
they  are  put  on  board ;  as,  for  instance,  that  they  are  goods 
containing  such  and  such  a  percentage  of  good  or  bad  material, 
or  of  such  and  such  a  season's  growth.  To  ascertain  such  mat- 
ters is  obviously  quite  outside  the  scope  of  the  functions  and 
capacities  of  a  ship's  captam  and  of  the  contract  of  carriage 
with  which  he  has  to  do." 

The  same  doctrine  is  established  by  Brown  v.  Powell  Coal  Co.,^ 
where  it  was  held,  that  a  shipowner  is  not  estopped  by  the  signa- 
ture of  the  bill  of  lading  by  the  master  from  showing  that  the 
goods,  or  some  of  them,  were  never  actually  put  on  board.  In 
neither  of  these  judgments,  in  these  different  English  courts, 
including  the  ultimate  court  of  appeal,  the  House  of  Lords,  is 
there  a  single  dissenting  judgment.  In  neither  of  them  is  Grant 
V.  Norway  ^  questioned  by  either  counsel  or  judges ;  and  in  several 
o(  them,  notably  in  the  latest  case  (a.  D.  1886)  we  have  cited,* 
that  case  is  expressly  followed.  So  it  is  perfectly  clear  the  law 
in  England  on  the  point  is  thoroughly  settled,  and,  we  think,  is 
thoroughly  well  settled. 

1  10  C.  B.  665.  *  Cox  V.  Brace,  18  Q.  B.  Div.  147;  de- 

2  L.  R.  10  C.  P.  562.  ci(Ted  by  the  Queen's  Bench  Division,  and 
8  10  C.  B.  665.  affirmed  by  the  Court  of  Appeal. 


PART   I.]  RAILWAYS.  15 

In  this  country,  though,  the  case  is  decidedly  otherwise.  The 
decisions  here  are  in  irreconcilable  antagonism ;  the  Supreme 
Court  of  the  United  States,  and  the  other  Federal  courts,  and  the 
courts  of  quite  a  number  of  the  States  where  the  question  has 
arisen,  holding  the  same  doctrine  as  is  established  by  the  un- 
broken series  of  English  cases ;  while  in  New  York,  and  in  two 
or  three  of  the  other  States,  the  decisions  are  contra  to  what  we 
think  is  really  the  law  in  the  matter. 

The  leading  case  which  holds  that  the  owner  is  liable  on  the 
bill  of  lading  of  the  master,  signed  by  the  latter,  without  any 
receipt  of  goods,  is  Armour  v.  The  Michigan  Central  R.  R.  Co.^ 

The  first  thing  specially  observable  in  this  case  is,  that  the 
judgment  was  delivered  by  a  divided  court,  Earl,  C,  dissenting 
from  the  judgment.  And  the  judgment  was  in  reversal  of  the 
unanimous  judgment  (by  Morrell,  Curtis,  and  Sedgwick,  JJ.)  of 
the  Superior  Court  of  New  York.  So  that  there  were  in  this  case 
really  four  judges  on  each  side  of  the  question.  The  judgment 
of  the  majority  of  the  judges  in  the  final  decision  proceeds  on  the 
assumption  that  Grant  v.  Norway  ^  had  been  overruled,  at  least  in 
New  York.  The  language  is:^  "Grant  v.  Norway  has  been  sub- 
ject to  much  and  severe  criticism,  as  being  adverse  to  the  general 
view  prevailing  in  the  courts  of  this  State,  where  confidence  has 
been  reposed  in  an  agent  and  an  apparent  authority  conferred 
upon  him,  that  the  principal  must  suffer  from  an  actual  exercise 
of  authority  not  exceeding  the  appearance  of  that  which  is 
granted.  "When  one  of  two  innocent  persons  must  suffer  in  such 
a  case,  that  person  must  bear  the  loss  who  reposed  the  confidence. 
So  far  as  Grant  v.  Norway  stands  in  the  way  of  this  doctrine, 
it  must  be  deemed  to  be  overruled.  Remarks  of  Davis,  J.,  in 
N.  Y.  &  N.  H.  R.  R.  Co.  v.  Schuyler." « 

We  find  that,  while  w'hat  we  think  are  very  unsound  principles 
were  laid  down  in  the  latter  cases  to  which  reference  is  made  in 
the  above,  as  widely  as  they  are  laid  down,  yet  that  it  was  rather 
sought  to  distinguish  Grant  v.  Norway,  in  those  cases,  than  to  over- 
rule it.  Thus,  the  remarks  of  Davis,  J.,  referred  to,  are  as  follows  : 
"  I  shall  not  inquire  how  far  the  English  cases,  and  especially  the 
leading  case  of  Norway  v.  Grant,^  so  much  relied  upon,  may  be 
in  conflict  with  the  law  of  this  State.  Both  the  Judges  Selden 
have  sought  to  show  that  Norway  v.  Grant  is  distinguishable  from 
the  cases  under  their  consideration,  and  I  w\\\  only  add  that  if 
they  did  not  succeed  in  pointing  out  the  distinction,  and  the  case 
really  stands  in  conflict,  so  much  the  worse  for  that  case.^' ^ 

^  6.5  N.  Y.  111.  <  34  N.  Y.  73. 

2  10  C.  B.  665.  6  10  C.  B.  665. 

8  At  p.  121.  ®  The  italics  are  his  own. 


16  COMMENTARIES   ON   SALES.  [bOOK   III. 

The  cases  in  which  "  the  Judges  Selden  "  referred  to  Grant  v. 
Norway  are  The  Farmers'  and  Mechanics'  Bank  v.  The  Butchers' 
and  Drovers'  Bank,^  and  Griswold  v.  Haven.^  In  the  latter  case, 
Selden,  J.,  says :  "  There  are  some  English  cases  which  have 
been  frequently  cited  in  opposition  to  the  doctrine  adopted  in 
this  case,  and  which,  although  briefly  commented  on  in  the  case 
of  The  Butchers'  and  Drovers'  Bank,  it  may  be  well  again  to 
notice,  as  a  more  extended  analysis  will  show,  I  think,  that  they 
are  of  very  little  weight  as  opposed  to  that  doctrine.  The  first 
of  these  cases  is  that  of  Grant  v.  Norway .^  The  master  of  a  ship 
owned  by  the  defendants  had  signed  and  delivered  a  bill  of  lad- 
ing, in  the  usual  form,  for  goods  which  had  never  been  shipped. 
The  plaintiffs,  upon  the  faith  of  this  bill  of  lading, .and  upon  its 
deposit  with  them,  had  made  advances  to  the  parties  appearing 
by  the  bill  to  have  shipped  the  goods.  Upon  discovering  that  no 
goods  had  been  shipped,  they  brought  their  action  against  the 
owners  of  the  ship.  Now,  upon  the  principles  maintained  here, 
this  was  a  very  plain  case.  The  parties  to  whom  the  bill  of  lading 
was  given  had,  of  course,  no  right  of  action,  because  they  were 
cognizant  of  the  fraud,  and  the  plaintiffs  had.  none,  because  no 
representation  was  made  to  them.  Had  the  bill  of  lading  been 
a  negotiable  instrument,  the  plaintiffs  would  have  been  in  pre- 
cisely the  same  position  as  persons  who  became  bo7id  fide  indorsers 
[sic,  but  indorsees  is  meant]  of  the  negotiable  note  of  a  partner- 
ship fraudulently  issued  by  one  of  the  partners.  A  privity  be- 
tween the  parties  would  then  have  existed  through  the  negotiable 
character  of  the  paper,  and  the  defendants  would  have  been  es- 
topped by  the  act  of  their  agent  from  setting  up  that  no  goods 
had  been  shipped." 

Here,  palpably,  there  is  no  pretence  that  Grant  v.  Norway  was 
wrongly  decided  or  was  overruled.  The  case,  in  fact,  in  effect 
admits  that  Grant  v.  Norway  was  correctly  decided,  within  the 
actual  limits  of  the  case,  and  an  attempt  is  made  to  distinguish 
it  from  Griswold  v.  Haven,  from  which  case,  on  another  ground 
than  that  named,  to  which  we  hereafter  refer,  we  think  it  is 
clearly  distinguishable.  It  is  also  observable  that  while  quota- 
tions have  been  given  in  Griswold  v.  Haven  from  observations 
made  during  the  argument  in  Grant  v.  Norway,  Selden,  J.,  failed 
to  notice  that  the  judgment  given  by  Jervis,  C.  J.,  in  Grant  v. 
Norway,  was  the  unanimous  judgment  of  the  court. 

The  comments  on  Coleman  v.  Riches,*  in  Griswold  v.  Haven, 
are  equally  disingenuous.     The  soundness  of  Coleman  v.  Riches 

1  16  N.  Y,  125.  8  IOC.  B.  665. 

2  25  N.  Y.  595.  *  16  C.  B.  104. 


PART   I.]  RAILWAYS.  17 

is  not  questioned,  but,  in  attempting  to  distinguish  it  from  Gris- 
wold  V.  Haven,  the  doctrine  established  by  the  judgment  of  all 
the  judges  is  lost  sight  of  or  distorted. 

So,  in  The  Farmers'  and  Mechanics'  Bank  v.  Butchers'  and 
Drovers'  Bank,^  the  attempt  is  made  to  distinguish  this  case  from 
Grant  v.  Norway  and  Coleman  v.  Riches,  but  there  is  no  pretence 
there  that  those  cases  were  not  properly  decided,  nor  the  slightest 
intimation  that  either  of  those  cases  was  being  overruled.  Sel- 
den,  J.,  says  of  them :  "  In  neither  of  those  cases  was  the  docu- 
ment upon  which  the  question  arose  negotiable.  It  was  sought 
there  to  make  the  principal  responsible  for  a  false  representation 
of  the  agent,  not  to  the  person  to  whom  the  representation  was 
made,  but  to  one  with  whom  the  agent  had  no  dealings,  and  to 
whom  he  had  made  no  representation.  Upon  a  careful  examina- 
tion, it  very  plainly,  I  think,  appears  that  this  was  the  real  obsta- 
cle to  a  recovery  in  each  of  these  cases.  When  Sergeant  Crowder, 
counsel  for  the  plaintiffs  in  Grant  v.  Norway,  cited  the  case  of 
Hern  v.  Nichols,^  and  invoked  the  doctrine  there  laid  down  by 
Lord  Holt,  Justice  Cresswell  replied :  '  There  the  factor  entered 
into  a  contract  with  the  plaintiff  for  his  employer.  Here  you  are 
a  step  further  off.  You  say  your  agent,  with  'whom  I  made  no 
contract,  has  enabled  a  man,  with  whom  1  did  contract,  to  cheat 
me.  This  remark  j^resents,  in  my  judgment^  the  turning-point  of 
the  case,  and  the  only  obstacle  to  the  plaintijfs  recovery.''  " 

In  this  case,  as  in  Griswold  v.  Haven  (supra'),  while  there  is  an 
effort  made,  by  a  palpable  ignoring  of  the  judgments  in  Grant  v. 
Norway  and  Coleman  v.  Riches,  to  sustain  their  holding  in  the 
two  New  York  cases  named,  it  is  not  for  a  moment  claimed  that 
they -were  actually  overruling  Grant  v.  Norway  or  Coleman  v. 
Riches.  On  the  contrary,  the  Judges  Selden  evidently  treated 
both  of  these  cases  as  well  decided,  and  their  effort  seemed  to  be 
to  show  that,  in  the  two  New  York  cases,  they  were  not  deciding 
contra  to  them.  Nominally,  at  least,  they  did  not  claim  to  be 
overruling  them,  but  rather  to  be  following  what  they  alleged 
was  their  actual  holding. 

But,  while  trying  to  escape  from  the  holding  of  Grant  v.  Nor- 
way and  Coleman  v.  Riches,  on  the  ground  upon  which  those  cases 
are  decided  in  the  judgments,  a  correct  summary  of  which  judg- 
ments is  to  be  found  in  the  head-notes  of  these  cases,  thus  :  "  The 
master  of  a  ship  signing  a  bill  of  lading  for  goods  which  have 
never  been  shipped,  is  not  to  be  considered  as  tlie  agent  of  the 
owner  in  that  behalf,  so  as  to  make  the  latter  responsible  to  one 
who   has  made  advances   upon   the  faith  of   bills   of   lading  so 

1  16  N.  Y.  125,  140.  2  1  Salk.  289. 


18  COMMENTARIES   ON   SALES.  [BOOK   III. 

signed ; "  and  :  "  And  a  master  is  civilly  responsible  for  the  fraud 
or  negligence  of  his  servant  acting  in  the  course  of  his  employment ; 
but  not  for  an  act  of  wilful  fraud  or  negligence  done  by  him  out 
of  the  scope  of  his  authority,  or  inconsistent  with  the  course  of 
his  employment,"  —  the  court  in  this  very  case  of  Farmers',  etc. 
Bank  v.  Butchers',  etc.  Bank^  (relied  on  in  Armour  v.  Michigan 
Central  R.  R.  Co. ,2  and  by  Davis,  J.,  in  New  York,  etc.,  R.  R.  Co. 
V.  Schuyler),^  assent  to  a  doctrine  which,  of  itself,  shows  that 
Armour  v.  Michigan  Central,  etc.  R,  R.  Co.,  is  wrongly  decided ; 
thus :  "  Here  you  are  a  step  further  off.  You  say  '  your  agent, 
with  whom  I  made  no  contract,  has  enabled  a  man,  with  whom  I  did 
contract,  to  cheat  me.''  This  remark  presents,  in  my  judgment, 
the  turning-point  of  the  case,  and  the  only  obstacle  to  the  plain- 
tiff's recovery,  viz. :  the  want  of  any  privity  of  contract  between 
the  plaintiff  and  the  agent." 

The  words  which  we  have  italicized  state  the  case  on  that 
point,  not  only  of  Grant  v.  Norway  and  Coleman  v.  Riches,  but 
of  Armour  v.  Michigan  Central  R.  R.  Co.,  as  well.  In  all  of  these 
cases  the  parties  making  the  contract  with  the  agent  were  the 
men  with  whom  the  plaintiffs,  who  claimed  to  be  cheated,  made 
their  contract.  A- bill  of  lading  entered  into  with  A.,  the  shipper, 
to  deliver  goods  to  A.  or  his  assigns  ;  or  to  order  or  assigns ;  or 
to  B.  or  assigns,  is  equally  a  contract  with  A.,  and,  under  such 
contract,  the  assignee  of  tlie  indorsee  of  either  of  the  two  first- 
named  bills  of  lading  takes  precisely  the  same  rights  as  the  in- 
dorsee of  B.  in  the  third  case  named.  So  that,  on  the  authority 
invoked  in  Armour  v.  Michigan  Central  R.  R.  Co.,  the  very  ground 
upon  which  in  Farmers',  &c.  Bank  v.  Butchers',  &c.  Bank,  it  is 
sought  to  distinguish  Grant  v.  Norway  and  Coleman  v.  Riches, 
and  to  sustain  them,  is  conclusive  to  show  that  Armour  v.  Michi- 
gan Central  R.  R.  Co.  is  wrongly  decided. 

The  court,  in  this  latter  case,*  did  seem  to  have  some  misty 
comprehension  of  this  difficulty,  and  attempted  to  get  out  of  it 
with  what  it  calls  a  "  plausibility."  But  it  is  not  even  that.  The 
merest  tyro  in  law  should  know  that,  primarily,  the  contract  is 
made  with  the  shipper  or  consignor,  and  that  the  consignee  has 
no  other  or  greater  rights,  because,  in  the  bill  of  lading,  his  name 
is  inserted,  than  a  party  has  where  the  shipper's  name  is  inserted 
in  the  bill  of  lading  as  the  person  to  whom  the  goods  are  to  be 
delivered,  or  where  nb  name  but  simply  "  order  or  assigns  "  is  in- 
serted, and  the  party  takes  by  indorsement  of  the  bill  of  lading. 
In  either  case,  the  consignee  or  indorsee  claims  through  the  con- 

t  16  N.  Y.  125,  141.  8  34  n.  y.  30. 

2  65  N.  Y.  111.  *  At  p.  121  et  seq. 


PART   I.J  RAILWAYS.  19 

signor,  with  whom  as  shipper  the  contract  for  the  shipment  has 
been  made.  So,  on  the  very  ground  that  Grant  v.  Norway  was 
sought  to  be  distinguished,  not  only  in  Farmers',  &c.  Bank  v. 
Butchers',  &c.  Bank,^  but  in  Armour  v.  Michigan  Central  R.  R. 
Co.^  itself,  must  this  latter  case  be  held  to  have  been  badly  decided. 

An  adaptation  of  the  slang  in  the  language  of  Davis,  J.,  from 
New  York,  <fec.  R.  R.  Co.  v.  Schuyler,^  would  seem  to  be  more 
applicable  to  Armour  v.  Michigan  Central  R.  R.  Co.  itself,  than  to 
what  we  think  is  the  undoubtedly  well  decided,  as  it  is  the  often 
affirmed,  decision  of  Grant  v.  Norway. 

And  not  only  do  those  older  New  York  cases,  in  their  efforts  at 
distinguishing  and  thereby  sustaining  Grant  v.  Norway,  show  that 
Armour  v.  Michigan  Central  R.  R.  Co.  was  wrongly  decided,  be- 
cause there  was  no  privity  between  the  principal  of  the  agent  (who 
made  the  fraudulent  contract  with  the  alleged  shipper)  and  the 
defrauded  consignee,  on  the  ground  that  the  bill  of  lading  is  not 
negotiable ;  but  on  the  same  ground  they  distinguish  and  sustain 
Grant  v.  Norway,  and  therefore  condemn  the  holding  in  Armour 
V.  Michigan  Central  R.  R.  Co.,  because  there  was  no  represen- 
tation made  by  the  agent  to  the  party  ultimately  defrauded. 
This  is  very  obvious  by  their  comments  on  Coleman  v.  Riches.^ 
In  that  case  it  would  seem  that  the  agent  signed  a  receipt 
for  goods  as  received  for  George  Coleman  (the  plaintiff)  at 
Riches's  (the  defendant's)  wharf.  This  receipt  was  produced  by 
the  pretended  vendor,  and  he,  in  the  presence  of  the  agent  who  had 
signed  the  receipt,  represented  to  the  plaintiff  that  the  wheat  had 
been  delivered  at  the  wharf,  and  was  thereupon  paid  for  it  by  the 
plaintiff.  This  is  much  nearer  a  representation  to  the  plaintiff, 
by  the  fraudulent  agent,  than  in  Armour  v.  Michigan  Central  R.  R. 
Co.  The  receipt  and  bill  of  lading  in  the  two  cases  seem  to  have 
been,  in  effect,  the  same.  But  in  the  latter  case,  the  representation 
in  the  bill  of  lading  was  made  by  the  agent  to  the  fraudulent 
shipper ;  by  him  to  the  bank,  and  by  the  bank  to  the  plaintiff.  The 
remarks  of  Selden,  J.,  in  Farmers,  &c.  Bank  v.  Butchers,  &c. 
Bank,^  referring  to  Coleman  v.  Riches,  would  have  a  still  stronger 
application  to  Armour  v.  Michigan  Central  R.  R.  Co.,  thus :  "  It 
was  sought  there  to  make  the  principal  responsible  for  a  false 
representation  of  the  agent,  not  to  the  person  to  whom  the  rep- 
resentation was  made  [that  is,  by  the  receipt],  but  to  one  with 
whom  the  agent  had  no  dealings^  and  to  whom  he  had  made  no 
representations.  .  .  .  There  Board,  the  agent  of  'RichaB,  had  given 
a  false  receipt^  not  to  the  plaintiff  hut  to  Lewis,  and  Lewis  had 

1  16  N.  Y.  at  p.  140  e<  sey.  4  16  C.  B.  104. 

2  65  N.  Y.  at  p.  121  et  seq.  6  At  p.  141  et  scq,  16  N.  Y. 
8  34  N.  Y.  at  p.  73. 


20  COMMENTARIES   ON  SALES.  [BOOK   III. 

exhibited  this  receipt  to  the  plaintiff  and  obtained  money  upon  it. 
.  .  .  The  difficulty  in  the  way  of  a  recovering,  in  this  case,  was 
that  no  privity  of  contract  was  established  between  Riches,  or 
his  agent  [Board],  and  the  plaintiffs,  by  means  of  which  the  mis- 
representations made  hy  Board  could  he  considered  as  made  to  the 
plaintiff.  Had  the  receipt  been  a  negotiable  instrument,  a  privity 
would  have  been  established."  This  reasoning  is  conclusive 
against  the  holding  in  Armour  v.  Michigan  Central  R.  R.  Co.,  as 
is  really  shown  in  the  case  itself.^ 

But  while  we  think  Armour  v.  Michigan  Central  R.  R.  Co.  is 
wrongly  decided,  and  that  not  alone  on  the  ground  that  the  two 
New  York  cases  (itself  one  of  them)  to  which  we  have  referred, 
in  their  attempts  to  distinguish  Grant  v.  Norway,  show  that  it 
(Armour  v.  Michigan  Central  R.  R.  Co.)  is  wrongly  decided ;  but 
also  on  the  clear,  unquestionable  ground  upon  which  Grant  v. 
Norway,  and  the  unbroken  series  of  English  cases  which  followed 
it,  were,  as  we  have  shown,  really  decided  ;  namely,  that  the  acts 
were  not  binding  on  the  owner,  or  principal,  as  they  were  acts 
outside  of  the  scope  of  the  employment  of  the  master  or  agent,  un- 
authorized, expressly  or  impliedly,  by  the  owner  or  principal.  It 
may  be  that  the  cases  of  Farmers',  &c.  Bank  v.  Butchers',  &c. 
Bank,2  Griswold  v.  Haven,^  and  New  York,  &c,  R.  R.  Co.  v. 
Schuyler  *  may  have  been  well  decided,  though  not  affecting  the 
soundness  of  the  well-decided  case  of  Grant  v.  Norway,  or  the 
numerous  cases  in  England  and  in  this  country  which  have  fol- 
lowed it,  and  without  affecting  the  unsoundness  of  the  badly- 
decided  case  of  Armour  v.  Michigan  Central  R.  R.  Co.  and  the 
two  or  three  cases  in  this  country  which  have  followed  it. 

We  think  that  Farmers',  &c.  Bank  v.  Butchers',  &c.  Bank  ^  and 
Griswold  v.  Haven ^  are  both  distinguishable  from  Grant  v.  Norway 
and  the  other  English  cases  we  have  cited  in  this  section  ;  and 
that  while,  in  those  two  American  cases,  there  is  language  used 
which  is  much  too  wide,  to  cover  all  classes  and  descriptions  of 
agencies,  the  actual  decision  in  these  cases  may  be  sustained 
without  at  all  interfering  with  the  principles  governing  that 
class  of  agencies  covered  by  Grant  v.  Norway  and  the  other 
English  cases,  and  without,  on  any  solid  ground,  sustaining  the 
holding  in  Armour  v.  Michigan  Central  R.  R.  Co. 

Griswold  v.  Haven  ^  was  a  case  where  the  representation  was 

1  See  65  N.  Y.   121,  122.      See  also,  »  25  N.  Y.  595. 

making  the  same  distinction.  The  Farm-  *  34  N.  Y.  30. 

ers'  &c.  Bank  v.  The  Butchers',  &c.  Bank,  ^  14  n,  y.  623;  16  N.  Y.  125. 

in  the  Superior  Court,  14  N.  Y.  623,  633,  ^  25  N.  Y.  596. 

per  Denio,  C.  J.  ''  Ibid. 

a  14  N.  Y.  623;  16  N.  Y.  125. 


PAET   I.]  RAILWAYS.  21 

made  by  a  principal,  a  member  of  a  partnership  firm ;  and  the 
fraudulent  representation  made  by  him  in  connection  with  the 
ordinary  business  of  the  firm  was  held  to  bind  the  firm.  True, 
the  case  is  put  on  the  ground  of  agency,  and  it  is  also  true  that 
each  ostensible  member  of  a  firm  is  the  agent  of  his  copartners  ; 
but  he  is  an  agent  with  the  widest  possible  powers,  because  he  is 
not  only  an  agent,  but  is  a  principal  as  well.  Whether  the  case 
is  rightly  or  wrongly  decided,  the  powers  of  a  principal  in  a 
firm,  with  the  widest  kind  of  general  agency  connected  with  the 
business  of  the  firm,  are  very  different  from  the  special,  limited 
powers  of  a  shipmaster,  or  freight-agent  of  any  other  common- 
carrier  than  a  ship,  the  law  in  connection  with  which  has 
grown  up  with  and  is  a  part  of  the  law  merchant.  If  the  sig- 
nature to  the  receipt  or  bill  of  lading,  by  one  of  the  members 
of  the  firm,  were  that  of  a  partnership-firm,  who,  as  such,  owned 
the  railway  or  the  ship,  quite  another  question  might  arise  than 
that  which  was  decided  by  Grant  v.  Norway  and  the  cases  fol- 
lowing it.  A  member  of  the  firm  who  owns  the  ship  has  power 
to  bind  the  firm  with  respect  to  the  ship  very  much  more  widely 
than  the  mere  master  of  the  ship  can  do.  The  master's  powers, 
by  a  long  array  of  authority,  are  strictly  limited  and  defined ; 
and  it  is  only  by  setting  aside  decisions  which  have  regulated 
such  powers,  and,  on  principle,  giving  him  vastly  larger  powers 
than  he  has  ever  been  held  to  possess,  that  a  case  like  Armour 
V.  Michigan  Central  R.  R.  Co.  can  be  sustained. 

So,  in  the  case  of  Farmers'  Bank,  &c.  v.  Butchers'  Bank,  <fec.,^ 
which  was  a  case  of  the  wrongful  certification  of  a  check  by  the 
teller  of  a  bank,  who  was  accustomed  to,  and  whose  business  it 
was  to  certify  checks,  it  was  held  that  the  bank  was  bound  by  its 
representation.  This  decision  was  largely  put  on  the  ground  of 
the  negotiable  character  of  the  check.  Thus,  Selden,  J.,  says: 
"  A  citizen  who  deals  with  a  corporation,  or  who  takes  its  nego- 
tiable paper,  is  presumed  to  know  the  extent  of  its  corporate 
power.  But  when  the  paper  is,  upon  its  face,  in  all  respects  such 
as  the  corporation  has  authority  to  is^ue,  and  its  only  defect  con- 
sists in  some  extrinsic  fact,  such  as  the  purpose  or  object  for 
which  it  was  issued,  to  hold  that  the  person  taking  the  paper 
must  inquire  as  to  such  extraneous  fact,  of  the  existence  of 
which  he  is  in  no  way  apprised,  would  obviously  conflict  with 
the  whole  police/  of  the  law  in  regard  to  negotiable  pajjer."  ^ 

But  the  law  in  regard  to  the  liability  of  a  ship  or  railway,  on  a 
bill  of  lading  or  freight  receipt,  signed  by  the  master  or  freight- 
agent,  fraudulently,  without  receipt  of  the  goods,  has  nothing 

1  16  N.  Y.  125.  ^  Ibid.  129. 


22  COMMENTARIES  ON   SALES.  [BOOK  III. 

whatever  to  do  with  what  is  here  referred  to  as  "  the  law  in  re- 
gard to  negotiable  paper."  A  much  wider  scope  is,  necessarily, 
in  law,  given  to  one  class  of  agents  than  to  another,  and,  arising 
out  of  this,  a  distinction  has  long  been  established  between  the 
powers  of  general  and  of  special  agents  to  bind  their  principals. 

It  may  be  that  the  act  of  a  manager  or  cashier  of  a  bank,  or, 
as  in  this  case,  a  teller  acting  as  cashier,  could  be  sustained, 
so  as  to  bmd  the  bank,  in  connection  with  the  fraudulent  issue  of 
negotiable  paper,  where  the  act  of  one  clothed  with  less  powers 
would  not  be  sustained ;  or,  that  a  principle  applicable  to  the 
one  case  would  be  totally  inapplicable  to  the  other.  We  very 
gravely  question  the  soundness  of  the  rule  laid  down  in  this 
case,  at  least  when  applied  to  such  cases  as  Grant  v.  Norway 
and  Armour  v.  Michigan  Central  R.  R.  Co. 

Selden,  J.,  says .  ^  "It  is,  I  think,  a  sound  rule,  that  where  the 
party  dealing  with  an  agent  has  ascertained  that  the  act  of  the 
agent  corresponds  in  every  particular,  m  regard  to  which  such 
party  has  or  is  presumed  to  have  any  knowledge,  with  the  terms 
of  the  power,  he  may  take  the  representation  of  the  agent  as 
to  any  extrinsic  fact  which  rests  peculiarly  within  the  knowl- 
edge of  the  agent,  and  which  cannot  be  ascertained  by  a  com- 
parison of  the  power  with  the  act  done  under  it."  Taking  the 
rule  literally,  it  simply  amounts  to  nothing ;  because  it  is  always 
possible  to  ascertain  whether  the  act  done  under  the  power, 
compared  with  the  power,  is  within  that  power.  But  the  so- 
called  rule  has  been  extended  to  mean,^  where  the  extrinsic  fact 
which  constitutes  the  condition  of  the  authority  is  peculiarly 
within  the  agent's  knowledge,  tliough  it  may  he  discovered  hyin- 
quiry^  it  is  necessarily  represented  to  exist  by  the  execution  of 
the  agent's  powers,  and  such  execution  of  the  agent's  powers 
is  binding  on  the  principal.  It  is  upon  this  transparent  fal- 
lacy that  all  the  New  York  cases,  in  this  connection,  depend. 

Thus,  a  shipmaster,  or  a  railway  station  agent,  has  the  power 
to  sign  a  bill  of  lading  or  freight  receipt  on  the  actual  receipt  of 
the  goods ;  and  therefore,  according  to  this  "  rule,"  he  has  the 
power  to  bind  the  ship  and  her  owners,  or  the  railway  company, 
by  signing  a  bill  of  lading  or  receipt,  though  he  has  not  received 
the  goods ;  as  his  signing  the  bill  of  lading  or  receipt  is  a  repre- 
sentation, by  the  shipmaster  or  railway  station  agent,  that  he  has 
received  the  goods. 

Again,  a  shipmaster  has  the  power  to  sell  and  convey  a  title 
to  the  ship,  when  the  necessities  of  the  case  justify  it ;  therefore, 

1  At  p,  135.  Schuyler,  34  N.  Y.  at  p.  69,  and  the  other 

2  Sec   New  York,    &c.    R.  R.   Co.  v.     New  York  cases  there  cited. 


PART   I.]  RAILWAYS.  23 

though  it  can  be  ascertained  by  inquiry  that  the  circumstances 
of  the  case  did  not  justify  it,  as  he  must  be  held  to  have  peculiar 
means  of  knowledge  whether  the  circumstances  of  the  case  did  or 
did  not  justify  the  sale,  the  very  fact  of  his  making  the  sale  is  con- 
clusive. So,  a  married  woman,  deserted  by  her  husband,  is  clothed 
with  the  agency  of  necessity  ;  and  therefore,  as  it  is  peculiarly 
within  her  knowledge  whether  the  necessity  exists,  though  it  can 
be  ascertained  by  mquiry  that  there  is  no  such  necessity,  the  very 
fact  that  she  has  made  the  purchases  which  she  could  legally  make 
only  if  the  necessity  existed  is  conclusive  upon  her  husband.  A 
special  agent  has  the  power  to  bind  a  principal  for  the  purchase 
of  Ji5lOOO  worth  of  goods.  He  has  bought  the  $1000  worth  of 
goods,  and  although  this  on  inquiry  can  be  ascertained,  yet  he 
can  go  on  and  buy  $10,000  worth  of  goods,  and  bind  the  princi- 
pal for  them,  because  the  fact  whether  he  had  bought  more  than 
one  $1000  worth  was  peculiarly  within  his  knowledge. 

Such  a  principle,  as  widely  stated  as  it  is,  is,  we  think,  arrant 
nonsense,  and  it  is  upon  this  that  Armour  v.  Michigan  Central 
R.  R.  Co.  is  made  mainly  to  rest. 

We  notice  that  it  is  not  very  long  since  that  the  New  York 
Court  of  Appeals  itself  laid  down  principles  of  a  very  different 
character.  Thus,  in  Mechanics'  Bank  v.  New  York,  &c.  R.  R. 
Co.,1  by  the  unanimous  judgment  of  the  court  (Selden,  J.,  taking 
no  part  in  it),  where  Schuyler,  who  was  a  director  and  president 
of  the  board  of  directors  of  the  defendant  company,  and  its  trans- 
fer agent  in  the  city  of  New  York,  charged  with  the  keeping  of 
the  transfer-books  and  with  the  issuing  certificates  of  ownership  of 
the  defendants'  stock  at  that  place,  had  fraudulently  issued  certifi- 
cates of  stock,  the  defendants  were  held  not  liable,  though  Schuy- 
ler had,  under  certain  circumstances  peculiarly  within  his  own 
knowledge,  power  to  issue  certificates  of  stock.  Corastock,  J,,  in 
delivering  the  unanimous  judgment  of  the  New  York  Court  of 
Appeals,  said :  "  Schuyler,  as  the  agent  of  the  company,  had  no 
power  to  issue  a  certificate  for  shares  of  stock,  except  upon  the 
condition  precedent  of  a  transfer  on  the  books  by  some  previous 
owner,  and  the  surrender  of  that  owner's  certificate.  He  was 
the  transfer  agent  merely,  and  his  powers  were  expressly  limited 
to  that  department  of  the  business  of  the  corporation.  He  had 
no  general  certifying  power,  nor  any  power  at  all  to  certify,  ex- 
cept as  incidental  to  a  transfer  of  stock  by  its  owner  to  some  one 
else,  and  as  an  incidental  power  it  could  only  be  exercised  upon 
the  conditions  named."  And  "  all  the  judges,  except  Selden,  J., 
who  took  no  part  in  the  decision,"  reversed  the  judgment  of  the 
court  below,  which  held  that  the  defendants  were  liable. 

1  13  N.  Y.  599. 


24  COMMENTARIES    ON   SALES.  [BOOK   III. 

The  question,  under  a  different  state  of  facts,  came  up  again  in 
New  York,  &c.  R.  R.  Co.  v.  Schuyler,i  where  Davis,  J.,  delivering 
the  judgment  of  a  majority  of  the  same  court,  differed,  with  the 
holding  of  the  same  court  in  the  previous  case,  but,  as  we  have 
shown,  on  a  ground  that  would  destroy  very  much  of  the  well- 
established  doctrines  of  the  law  of  agency  ;  a  mere  majority  of 
the  remainder  of  the  court  (four  out  of  seven)  concurring  with 
him. 

From  Very  many  instances  which  might  be  named,  a  few  of 
which  we  have  mentioned,  where  the  agency  is  of  a  limited  special 
character,  we  think  it  is  unquestionable  that  the  ground  upon 
which  New  York,  &c.  R.  R.  Co.  vf  Schuyler,-  and  the  other  New 
York  cases  named  there,  purport  to  have  been  decided,  viz., 
"  that  where  the  authority  of  an  agent  depends  upon  some  fact 
outside  the  terms  of  his  power,  and  which,  from  its  nature, 
rests  particularly  within  his  knowledge,  the  principal  is  bound 
by  the  representation  of  the  agent,  although  false,  as  to  the  ex- 
istence of  such  fact,  .  .  .  though  such  fact  might  be  discovered 
by  inquiry,"  is,  as  applied  in  those  cases,  utterly  untenable  as 
an  unlimited  principle  of  law,  or,  in  fact,  as  a  principle  of  law 
at  all. 

The  very  case  of  New  York,  &c.  R.  R.  Co.  v.  Schuyler,^  per 
Davis,  J.,  himself,  shows  the  palpable  falseness  of  the  "  rule." 
He  there  says :  "  But  conceding  that  the  whole  question  of  this 
case  is  governed  by  the  law  of  principal  and  agent,  it  becomes 
of  grave  significance  to  ascertain  the  scope  and  extent  of  the 
powers  conferred  on  the  agent.  Herein,  1  think,  the  case  essen- 
tially cliff ers  from  that  of  the  Mechanics''  Bank.^  The  '  question  ' 
of  that  case  is  stated  by  Comstock,  J.,  in  16  N.  Y.,  at  pages  154, 
155,  tvith  succinctness  and  accuracy.  He  says  :  '  In  that  case  the 
transfer-agent  of  the  defendants  corporation  was  authorised  to  sign 
and  issue  certificates  of  stock  on  a  transfer  from  one  shareholder  to 
another  upon  the  hooks,  and  on  the  surrender  of  the  previous  certi- 
ficates.^ The  agent,  for  his  own  purposes,  signed  and  issued  cer- 
tificates to  a  large  amount  where  there  had  been  no  such  transfer 
or  surrender.  These  unauthorized  and  spurious  instruments  were  in 
form  precisely  like  those  that  were  genuine  and  authorized.  Trust- 
ing to  their  false  appearance,  the  plaintiffs  took  one  of  them  by  trans- 
fer and  advanced  money  upon  it,  which  they  recovered  in  the  New 
York  Superior  Court.  "We  held  that  they  could  not  recover,  and 
reversed  the  judgment,  placing  our  decision  prominently  upon 
the  ground  that  the  acts  of  the  agent  were  not  within  the  real  or 

1  34  N.  Y.  30.  *  3  Kern.  (13  N.  Y.)  599. 

2  34  N.  Y.  30,  68,  et  seq.  ^  The  italics  are  his  own. 
8  34  N.  Y.  at  p.  61. 


PART   I.]  RAILWAYS.  25 

apparent  scope  of  the  power  delegated  to  him.'  "  The  following 
additional  language  was  omitted :  ^  "  We  certainly  did  not  put  our 
judgment  upon  the  ground  that  the  plaintiffs  were  not  in  privity 
of  dealing  with  the  defendants,  by  reason  of  the  non-negotiable 
character  of  the  certificates,  and  therefore  could  not  sue  for  the 
fraud.  It  had  been  argued  that  they  were  negotiable  or  quasi 
negotiable.  We  held  that  they  were  not ;  but  we  further  held 
that,  whatever  might  be  their  character  in  that  respect,  they  were 
void  everywhere,  because  issued  without  authority.''^ 

And  yet  the  agent,  Schuyler,  had  authority,  under  certain  cir- 
cumstances, to  issue  the  certificates,  exactly  as  a  shipmaster  or 
a  railway-station  or  freight  agent  has  to  sign  bills  of  lading  or 
freight  receipts  on  the  actual  receipt  of  the  goods. 

Now,  in  the  face  of  this  distinguishing,  and  not  disapproving  of 
the  holding  in  Mechanics'  Bank  v.  New  York,  &c.  R.  R.  Co.,^  in 
New  York,  &c.  R.  R.  Co.  v.  Schuyler,^  which,  in  principle,  sustains  the 
holding  in  Grant  v.  Norway,  and  condemns  that  in  Armour  v. 
Michigan  Central  R.  R.  Co.,*  look  at  the  New  York  "  rule  "  as  it 
was  stated  by  Selden,  J.,  in  delivering  the  judgment  of  the  major- 
ity of  the  court  in  Farmers',  <fec.  Bank  v.  Butchers',  &c.  Bank,^ 
as  quoted  from  the  North  River  Bank  v.  Aymar :  ^  "  Wiienever 
the  very  act  of  the  agent  is  authorized  by  the  terms  of  the  power, 
that  is,  whenever,  by  comparing  the  act  done  by  the  agent  with 
the  words  of  the  power,  the  act  is  in  itself  warranted  by  the  terms 
used,  such  act  is  binding  on  the  constituent,  as  to  all  persons  deal- 
ing in  good  faith  with  the  agent.  Such  persons  are  not  bound  to 
inquire  into  facts  aliunde  ;  the  apparent  authority  is  the  real 
authority." 

To  sustain  this  "  rule,"  as  it  was  applied  in  16  N.  Y.  137,  and 
the  later  New  York  cases,  the  cases  of  Grant  v.  Norway  and  Cole- 
man V.  Riches  required  a  good  deal  of  distinguishing. 

The  "  rule,"  as  stated  in  The  North  River  Bank  v.  Aymar,'^  is 
much  clearer  and  less  mystical  than  it  is  as  stated  in  some  of  the 
other  New  York  cases  which  have  used  it,  and,  therefore,  the  pal- 
pable absurdity  and  unsoundness  of  the  "  rule,"  as  acted  on  in 
these  cases,  is  rendered  clearer.  The  following  instances,  in  ad- 
dition to  others  which  we  have  named,  make  clear  the  falsity 
of  the  "  rule,"  as  so  construed  and  applied.  Thus  a  partner  has 
not  the  power  of  binding  his  co-partners  by  a  guarantee  given  out- 
side of  the  scope  of  the  business  of  the  firm,  unless  with  the  con- 
sent of  his  co-partners.     But,  according  to  the  "  rule,"  his  giving 

1  16  N.  Y.  at  p.  155.  ^  iq  j^.  y.  at  p.  137. 

2  13  N.  Y.  599.  6  3  Hill,  262. 
8  34  N.  Y.  at  p.  61.  ^  Ibid. 

*  65  N.  Y.  111. 


26  COMMENTARIES   ON  SALES.  [BOOK   III. 

a  guarantee  at  all  would  bind  the  firm,  because  his  giving  a  guar- 
antee would  be  a  binding  assurance  to  the  party  receiving  the 
guarantee  that  he  had  the  consent  of  his  co-partners.  Hence  fol- 
lows the  absurdity  that  while  he  has  no  power  to  give  a  guarantee 
to  bind  his  co-partners  without  their  consent,  yet  he  has  full  power 
to  so  bind  them  without  their  consent ,  because  his  giving  the 
guarantee  at  all  is  in  itself  conclusive  that  he  has  their  consent. 

The  simplicity  with  which  the  "  rule  "  is  stated  in  3  Hill,  262, 
construing  it  as  it  has  been  done  in  the  later  New  York  cases,  at 
once  shows  its  palpable  absurdity.  But  even  as  somewhat  more 
metaphysically  or  mystically  stated  in  some  of  the  other  cases 
from  which  we  have  quoted  it,  it  is  really  no  better,  but,  as  a  dis- 
tortion of  a  principle  of  law,  much  worse.  Thus,  as  applicable  to 
some  of  the  other  statements  of  the  "rule,"  is  the  following:  A 
shipmaster  can  bind  a  ship  where  the  circumstances  justify  him 
in  doing  so,  and  only  then,  by  a  bottomry  bond.  But  as  to  whether 
the  circumstances  do  justify  him  in  so  binding  the  ship,  lies  pecu- 
liarly within  his  own  knowledge  (by  the  "  rule,"  in  3  Hill,  2G2, 
this  is  not  an  essential  ingredient,  the  "  rule  "  there  being  entirely 
misconstrued  in  the  later  New  York  cases),  although  capable  of 
being  ascertained  by  inquiry,  yet  as  the  fact  of  his  obtaining  the 
money  on  a  bottomry  bond  is  conclusive  that  the  circumstances 
do  justify  him ;  therefore  he  may  bind  the  vessel  by  a  bottomry 
bond,  whether  the  circumstances  justify  him  or  not,  —  the  parties 
dealing  with  him  in  good  faith  not  being  "  bound  to  inquire  into 
the  facts  aliunde^  So,  although  the  shipmaster  is  not,  usually, 
the  agent  of  the  owners  of  the  cargo  at  all,  yet  as  he  becomes 
agent  of  necessity,  and  can  sell  the  goods  when  the  necessity 
arises,  —  the  burden  of  showing  this  being  placed  On  the  buyer, — 
and  pass  a  good  title  to  the  cargo,  he  can  always,  according  to  the 
New  York  "  rule,"  do  this,  whether  a  necessity  for  it  exists  or 
not,  because  his  selling  them  at  all  is  conclusive  that  there  is  a 
necessity  ;  and  the  purchaser  "  is  not  bound  to  inquire  into  the 
facts  aliunde.''^ 

And,  further,  outside  of  the  '^  rule  "  as  stated  in  3  Hill,  262, 
and  as  it  is  stated  in  the  other  cases,  as  it  is  a  matter  almost 
without  exception  that  an  agent  who  has  a  special,  limited  power, 
has  a  particular  knowledge  whether  the  act  performed  is  or  is  not 
within  his  power,  the  rule,  in  effect,  simply  amounts  to  this,  that 
where  an  agent  has  the  power  under  any  circumstances  to  per- 
form an  act,  the  very  fact  that  he  performs  the  act  is  a  guarantee 
to  all  parties  that  he  has  the  power  to  do  so,  —  that  the  act  per- 
formed is  within  his  power.  And  this,  mark,  according  to  the 
"  rule,"  is  the  guarantee  of  the  principal  in  all  cases,  even  in  such 


PART  I.]  RAILWAYS.  27 

as  the  most  extreme  of  those  of  which  we  have  stated.  Clearly 
it  is  only  necessary  fairly  to  state  the  alleged  rule,  as  it  has  been 
construed  by  the  late  New  York  cases,  in  order  to  show  its  un- 
soundness and  absurdity.  There  are  simply  legions  of  cases 
to  show  this,  with  which  the  works  on  Agency  abound,  and 
scores  of  which  are  cited  in  Vol..  I.,  Book  IL,  Part  VIII.,  of 
this  work.^ 

The  rule,  as  it  is  stated  in  3  Hill,  262,  as  subsequently  construed 
and  distorted  in  its  unsoundness  and  absurdity,  has  scarcely  any 
reasonable  limits  at  all.  Thus,  if  a  merchant,  having  injured  his 
hand  so  that  he  cannot  write,  requests  that  his  name  be  signed 
for  him  by  a  friend,  to  a  promissory  note,  that,  according  to  the 
so  construed  rule,  would  bind  the  merchant  by  the  signature  of 
his  friend  to  ten  thousand  notes ;  for,  having  the  power  to  sign 
a  note,  the  fact  of  signing  ten  thousand  notes  is  a  guarantee  by 
the  merchant,  to  any  one  taking  either  of  the  notes  bond  fide,  that 
that  one  is  the  particular  note  which  the  friend  was  requested  to 
sign,  —  the  fact  of  the  friend  signing  either  of  the  notes,  he  hav- 
ing the  power  to  sign  one  of  them,  being  a  guarantee  that  each  of 
the  notes  is  the  particular  one  he  had  the  power  to  sign ;  no  in- 
quiry being  necessary  aliunde.  We  repeat,  we  think  the  so  con- 
strued rule  is  arrant  nonsense. 

Not  only,  as  we  have  shown,  did  the  New  York  Court  of  Ap- 
peals itself,  in  The  Mechanics'  Bank  v.  The  New  York,  &c.  R.  R. 
Co.,'^  unanimously  hold  a  doctrine  contrary  to  the  above-named 
rule  as  stated  and  construed  in  the  later  cases,  but  it  would  seem 
from  the  minute  statement  by  Comstock,  J.,  in  16  N.  Y.  pp.  153, 
154,  of  The  North  River  Bank  v.  Aymar,^  that,  in  this  latter  case, 
in  the  highest  court  in  the  State  (the  Court  for  the  Correction  of 
Errors),  the  ratio  decidendi  of  the  Mechanics'  Bank  v.  The  New 
York,  &c.  R.  R.  Co.,*  was  affirmed  by  the  latter  court,  which  held 
(an  actual  reversing  of  the  judgment  in  The  North  River  Bank  v. 
Aymar),  in  that  case,  where  an  agent  was  authorized  by  a  written 
power  of  attorney  to  sign  and  indorse  notes  in  the  name  of  his 
principal,  that,  as  to  nine  notes  that  were  so  signed  or  indorsed, 
not  in  the  business  of  the  principal,  but  for  the  accommodation  of 
third  parties,  the  plaintiffs,  although  bond  fide  holders  of  these 

1  See,  among  other  cases,  Woodin   v.  18  C.  B.  905 ;  Green  v.  Kopke,  18  C.  B. 

Burford,  2  Cr.  &  M.  391  ;  Wilson  v.  Bar-  549  ;   Parker  v.  Winlow,  7  K.  &  B.  942, 

throp,  2  M.  &  W.  863;  Fenn  v.  Harrison,  949;  Wake  v.  Harrop,  1  H.  &  C.  202;  6  H. 

3  T.  R.  7r>7  ;    Polhill  v.  Walter,  4  B.  &  &  N.  768;  Oglesby  t).  Yglesias,  E.  B.  &  E. 

Ad.  114  ;  Ally  v.  Fernie,  7  M.  &  W.  154  ;  930;  Williamson  v.  Barton,  7  H.  &  N.  899. 
Davidson  v.  Stanley,  3  Scott,  N.   R.   49  ;  2  13  n.  y.  599. 

Harper  v.  Williams,  4  Q.  B.  219  ;  Down-  »  3  Hill,  262. 

man  v.  Williams,  7  Q.  B.  103  ;  Cooke  v.  *  13  N.  Y.  599. 

Wilson,  1  C.  B.  N.  s.  153;  GiUett  v.  Oiler, 


28  COMMENTARIES   ON   SALES.  [BOOK   III. 

notes,  could  not  recover  on  them  for  want  of  authority  in  the 
agent  to  sign  and  indorse  them ;  a  very  emphatic  condemnation  by 
the  highest  court  in  the  State,  in  addition  to  that  of  the  unani- 
mous judgment  in  the  Court  of  Appeals  itself,  of  tlie  so  called  and 
so  construed  "  rule  ;  "  the  utter  unsoundness  of  which,  we  think, 
we  have  shown.  The  weak  point  in  it  simply  is  in  making  the 
holding  out  of  an  agent  by  his  act  or  declaration,  as  equivalent  to 
the  holding  out  by  the  principal,  and,  in  this  respect,  it  is  as  bad 
as  the  reasoning  of  Ritchie,  C.  J.,  in  delivering  the  judgment  of 
the  Supreme  Court  of  New  Brunswick,  in  the  badly  decided  case 
of  Jones  V.  Foster.^ 

But,  bad  as  we  think  the  "  rule  "  is  in  itself,  as  it  was  distorted 
and  applied  to  such  a  case  as  that  of  Armour  v.  The  Michigan 
Central  R.  R.  Co.  ,2  we  think  the  application  to  it  of  the  princi- 
ples from  which  it  was,  as  so  construed  and  distorted,  deduced, 
is  equally  as  bad ;  and  that,  to  such  a  case,  the  principles  were 
misunderstood  and  misapplied. 

One  of  these  principles  is  connected  with  the  doctrine  of  estop- 
pel. But  a  man  is  only  estopped  in  pais  by  his  own  statement. 
Therefore,  before  a  principal  is  estopped  by  the  statement  of 
another,  it  must  be  shown  that  the  principal  speaks  by  and  through 
that  otlier,  or  that  the  other  is  speaking  as  the  agent  of  the  prin- 
cipal, within  the  scope  of  his  power ;  for  outside  of  this  the  prin- 
cipal is  no  more  bound  by  the  agent's  unauthorized  statement  than 
he  is  by  the  agent's  unauthorized  act.  Where  the  statement  is 
not  the  statement  of  the  principal,  the  person  making  the  state- 
ment, the  agent,  is  the  only  person  estopped.  It  is  but  begging 
the  question  to  assume,  as  to  everything  he  says  with  reference  to 
the  subject  with  which  he  has  some  power,  that  necessarily  that 
which  is  said  by  the  agent  is  said  by  the  principal.  There  is  no 
such  rule  in  the  law  of  estoppel,  and,  therefore,  deducing  in  part 
the  newly  manufactured  New  York  Agency  "  rule  "  from  an  as- 
sumed rule  in  the  law  of  estoppel  which  does  not  exist,  necessa- 
rily leads  to  a  fallacy. 

There  is  another  point  connected  with  bills  of  lading,  as  the  law 
relating  to  them  has  been  developed  by  Lickbarrow  v.  Mason,^  and 
the  other  cases  which  have  settled  the  law  as  to  sucli  instruments, 
arising  out  of  their  not  being  strictly  negotiable  paper,  which  has 
been  entirely  and  inexcusably  lost  sight  of  by  the  New  York 
courts.  If  A.  ship  goods,  and  consign  them  to  B.,  or  ship  goods 
"  to  order,"  and  indorse  the  bill  of  lading  to  B.,  the  ship  or  owner, 
notwithstanding  the  bill  of  lading  is  so  signed  by  the  master,  is  not 
liable  to  the  consignee  or  the  indorsee  of  the  bill  of  lading  (who 

1  12  N.  R.  K.  607,  stated  supra,Yo\.  I.,  2  (35  ^s^.  y.  111. 

p.  487,  n.  2.  3  2  T.  R.  63. 


PAET   I.]  RAILWAYS.  29 

stand,  for  all  purposes,  both  as  to  rights  and  powers,  in  precisely 
the  same  position),  if  the  goods  in  fact  did  not  belong  to  A.,  but 
to  C,  and  C.  has  claimed  and  received  them  by  title  paramount ; 
the  consignee  or  indorsee  of  the  bill  of  lading  deriving  only 
the  title  of  the  consignor. ^  A  fortiori,  the  ship  or  owner  is  not 
liable  where  no  goods  have  been  shipped  at  all.  And  yet,  if  there 
were  an  estoppel  to  bind  the  ship  or  owner,  certainly  it  would 
quite  as  well  exist  in  the  former  case  as  in  the  latter.  The  New 
York  decisions  are  so  radically  unsound  that  they  are  repugnant 
to  sound  legal  decisions,  on  salient  points,  in  all  directions. 

So,  too,  with  reference  to  the  other  principle,  upon  the  misap- 
plication of  which  the  so-called  "  rule  "  in  agency  is  founded,  viz. : 
that  where  one  of  two  innocent  persons  must  suffer  by  the  fraud 
of  a  third,  it  must  be  that  one  of  the  two  who  by  his  trust  and 
confidence  has  enabled  the  third  to  perpetrate  the  fraud.  But,  as 
we  have  before  intimated,  there  are  limitations  in  this  rule.  Thus, 
where  A.,  pretending  that  he  is  B.,  buys  goods  from  C,  and  thus 
obtains  possession  of  them,  and  sells  them  to  D.;  no  property  passes 
to  D.,  because  none  passed  to  A.  And,  although  it  was  through 
the  act  of  C.  that  A.  obtained  the  goods,  and  was  thus  enabled  to 
defraud  D.,  the  maxim  that  where  one  of  two  innocent  persons 
must  suffer,  it  must  be  the  one  who  by  his  trust  and  confidence 
enables  A.  to  commit  the  fraud,  does  not  apply  so  as  to  give  any 
title  to  D. 

A.  here  is  not  liable  to  D.,  precisely  as  the  shipowner  is  not 
liable  in  the  analogous  case  to  the  consignee  or  the  indorsee  of  the 
bill  of  lading,  for  the  act  of  the  shipmaster,  the  owner  having 
neither  authorized  the  act  nor  represented  to  the  consignee  or 
indorsee  that  he  had  done  so.  A.,  likewise,  is  not  liable  to  D.,  be- 
cause he  never  vested  any  property  in  B.,  nor  authorized  or  em- 
powered B.  to  make  any  representation  or  perform  any  act  with 
respect  to  the  goods  to  bind  A.  In  all  such  cases,  it  is  not  a  ques- 
tion which  should  suffer  as  between  two  innocent  men,  under  the 
maxim  relied  on.  The  trust  and  confidence,  such  as  it  is,  is 
reposed  by  D.  in  B. ;  A.,  as  between  B.  and  D.,  not  being  in  the  mat- 
ter at  all,  —  not  having  clothed  B.  with  any  authority,  nor  author- 
ized any  act,  or  made  any  representation  to  D.,  that  can  in  any 
way  act  as  an  estoppel.  The  same  reasoning  applies  to  the  case 
of  a  false,  unauthorized  representation  by  a  shipmaster,  or  rail- 
way station  agent,  or  freight  agent,  or  shipping  clerk,  in  signing 
a  bill  of  lading  or  freight  receipt  without  receipt  of  the  goods. 

1  See  Leake  on  Con.  1198;  Berkeley  u.     L.  R.  4  H.  L.  317,  336;  Hutchinson  on 
Watling,  7  A.  &  E.  29;  Gurney  t;.  Behrend,     Carriers,  §  129. 
3  E.  &  B.  622,  634;  Barber  v.  Meyerstein, 


30  COMMENTAEIES  ON  SALES.  [BOOK  III. 

The  case  we  have  above  put  is  another  good  illustration  of  the 
utter  absurdity  of  the  New  York  "rule."  Thus,  if  B.  is  C,  then 
he  has  power  from  A.  to  pass  the  property  in  the  goods.  But  the 
very  fact  that  he  sells  as  C.  is  a  conclusive  representation  bind- 
ing on  A.,  that  he  really  is  C. ;  therefore,  though  he  has  no  power 
to  pass  the  property  in  the  goods,  and  is  only  B.,  and  not  C.  at 
all ;  yet,  according  to  the  New  York  "  rule,"  as  between  A.  and 
D.,  B.  is  C,  and  has  power  to  pass  the  property  in  the  goods. 
How  so  utterly  silly  a  "  rule,"  as  it  has  been  construed  and  acted  on, 
could  have  deceived  and  been  adopted  by  successive  courts  in  New 
York,  and  remained  all  these  years  unexposed  till  now,  is  difficult 
to  comprehend.  In  the  same  way,  with  the  application  of  such  a 
"  rule,"  the  amount  of  sound  law  which  would  be  unsettled  is  al- 
most incalculable.  The  rule  is  no  more  applicable  to  the  case  of 
a  shipmaster  signing  a  bill  of  lading  for  goods  not  received,  with- 
out actual  or  implied  authority  to  do  so,  than,  on  the  very  face  of 
the  "  rule,"  it  is  to  any  other  well-established  case  of  special,  lim- 
ited agency  ;  nor  is  it  any  more  applicable,  in  principle,  to  agency 
than  it  is  to  sales,  or  to  any  other  matter  lying  in  contract.  Thus, 
according  to  the  spurious  "  rule,"  if  A.,  under  any  circumstances, 
has  the  power  as  agent  to  bind  B.  by  an  act,  the  very  fact  that  he 
performs  the  act  is  a  conclusive  representation,  binding  on  B., 
that  the  act  is  within  the  power,  though  it  can  be  ascertained 
aliunde  that  it  is  not  so.  With  as  much  wisdom  it  might  be 
said,  if  A.  under  any  circumstances  has  the  power  to  pass  the 
property  in  goods,  the  fact  that  he  purports  to  do  so  is  conclusive 
that  he  does  so  pass  the  property  in  the  goods,  and  though  the 
goods  are  owned  by  B.,  and  not  by  A.,  B.  is  concluded  by  A.'s  act, 
because,  under  some  circumstances  —  for  instance,  if  A.  were  the 
owner  —  A.  could  pass  the  property,  and  his  undertaking  to  pass 
the  property  at  all  is  conclusive  that  he  is  the  owner,  although  it 
could  be  ascertained  aliunde  that  he  is  not  the  owner. 

As  regards  the  maxim  as  to  one  of  two  innocent  persons  suf- 
fering from  the  fraud  of  a  third,  the  case  of  one  advancing  money 
on  a  fraudulent  bill  of  lading,  signed  by  a  shipmaster  or  railway 
station-agent  without  receipt  of  the  goods,  is  a  much  stronger 
case  than  that  which  we  have  put  connected  with  a  sale.  Here  is 
the  double  confidence  of  the  defrauded  party,  first,  in  the  original 
holder  of  the  bill  of  lading  or  railway  receipt,  and  second,  the 
confidence  that  the  shipmaster  or  freight  agent  has  really  re- 
ceived the  goods,  for  which  he  has  signed  the  bill  of  lading  or 
receipt.  Hence  it  is  a  matter  of  the  party  defrauded  placing  trust 
or  confidence  in  a  wrong-doer  or  in  a  succession  of  them.  Where 
credit  is  given  to  one  with  a  special,  limited  power,  the  one  giving 


PAET  I.]  RAILWAYS,  31 

such  credit  does  so  at  his  peril,  and  there  the  maxim  or  principle 
which  applies  is,  that,  in  such  a  case,if  he  trusts  without  inquiry, 
he  trusts  to  the  good  faith  of  the  agent,  and  not  to  that  of  the 
principal.^ 

But,  while  we  think  we  have  shown  that  the  so-called  "  rule," 
as  construed  and  distorted,  is  unsound  and  is  not  justified  by 
either  of  the  principles  upon  which  it  purports  to  be  based,  we 
have  also  directed  attention  to  the  fact  that,  even  assuming  the 
"  rule,"  as  so  enlarged,  to  be  correct,  still  the  very  ground  on 
which  it  was  sought  to  distinguish  and  sustain  it,  so  far  as  it  was 
assumed  not  to  differ  with  Grant  v.  Norway  and  Coleman  v. 
Riches,  was,  that  in  these  latter  cases  the  contract  was  not  made 
with  the  defrauded  parties,  nor  the  representation  made  directly 
to  them,  while,  in  the  New  York  cases,  it  was  otherwise  ;  the  rep- 
resentation having  been  made  either  directly  to  the  defrauded  party  ^ 
as  it  was  in  Griswold  v.  Haven,^  and  that,  not  by  an  agent  of  the 
firm,  but  by  one  of  the  principals ;  or  else  the  contract  was  with 
reference  to  negotiable  paper,  as  in  Farmers'  &c.  Bank  v.  Butch- 
ers' &c.  Bank,^  and  in  New  York,  &c.  R.  R.  Co.  v.  Schuyler,*  and 
therefore,  in  effect,  the  representation  was  made  to  the  holder  of 
the  paper.  And  we  have  also  shown  that  neither  of  these  features 
is  to  be  found  in  connection  with  Armour  v.  Michigan  Central  R.  R. 
Co.,^  but  that  that  case  is  admitted,  by  the  facts  in  it,  to  be  out- 
side of  the  rule,  and  to  come  expressly  within  the  rule  in  Grant  v. 
Norway  and  Coleman  v.  Riches,  as  stated  by  the  New  York  cases, 
including  that,  as  we  have  shown,  of  Armour  v.  Michigan  Central 
R.  R.  Co.  itself ;  and,  therefore,  on  every  ground  the  decision  in 
this  latter  case  is  undoubtedly  bad. 

And  we  not  only  think  tlie  case  badly  decided,  but  we  think  it 
is  one  of  the  most  perniciously  decided  cases  that  can  be  found, 
and  is  directly  calculated  to  encourage  fraud  to  an  almost  indefi- 
nite extent.  In  Armour  v.  Michigan  Central  R.  R.  Co.,^  the  case, 
as  we  have  pointed  out,  is  shown  by  the  express  admissions  in  it 
to  be  unsound.  Thus,  in  attempting  to  distinguish  Grant  v.  Nor- 
way,^ it  is  said :  "  In  that  case  the  bill  of  lading  was  issued  to  a 
party  who  knew  that  the  bill  of  lading  was  issued  by  an  agent 
without  authority,  and  it  was  then  transferred  to  a  purchaser 
acting  in  good  faith.  It  may,  accordingly,  be  said  with  plausi- 
bility that  the  representation  was  not  made  to  the  assignee,  who 
simply  acquired  the  title  of  the  fraudulent  consignee  [sic,  but 

1  Withinf^ton  v.  Herring,  5  Bing.  442  ;  '  16  N.  Y.  125. 

Fenn  v.  Harrison,  3  T.  R.  757;  Pickering  «  34  N.  Y.  30. 

V.  Busk,  15  East,  38,  43  ;  Schimmelpen-  ^  go  N.  Y.  111. 

nich  V.  Bayard,  1  Pet.  264,  290.  <*  65  N.  Y.  at  p.  121. 

a  25  N.  Y.  595.  ''  MO  C.  B.  665. 


32  COMMENTAEIES   ON   SALES.  [BOOK   III. 

consignor  or  shipper  is  really  meant].  It  would  have  resembled 
the  case  at  bar  if  the  plaintiffs  had  known  of  the  forgery  of 
Michaels  [the  shipper]  when  they  took  the  bills  of  lading,  and 
had  then  transferred  them  to  persons  paying  value  and  acting 
in  good  faith.  The  case  would  then  have  been  governed  hy  the 
rule  that  an  assignee  of  a  thing  in  action  must  abide  by  the  case 
of  him  of  whom  he  buys.  Remarks  of  Selden,  J.,  in  Griswold 
V.  Haven."  ^ 

But  as  the  consignee  of  Michaels,  in  Armour  v.  Michigan  Cen- 
tral R.  R.  Co.,  was  simply  the  assignee  of  Michaels  (the  shipper), 
as  we  have  pointed  out,  by  the  express  admissions  not  only  in  that 
case,  but,  as  we  have  shown,  in  the  others  which  preceded  it  in 
the  Court  of  Appeals,  and  which  attempted  to  distinguish  both 
Grant  v.  Norway  and  Coleman  v.  Riches  on  this  ground,  it  is  very 
obvious  that,  in  any  case,  the  decision  in  Armour  v.  Michigan  Cen- 
tral R.  R.  Co.  is,  on  this  ground  alone  independent  of  any  others, 
untenable. 

But  although  all  that  was  in  New  York's  highest  court  (the 
Court  of  Appeals),  in  a  later  case  in  a  lower  court  (the  Supreme 
Court  of  New  York)  we  notice  that  in  a  late  case,  Bank  of  Bata- 
via  V.  New  York,  &c.  R.  R.  Co.,^  while  endeavoring,  in  a  similar 
case,  to  follow  Armour  v.  Michigan  Central  R.  R.  Co.,  seeing  the 
difificulty  in  the  way  which  we  have  pointed  out,  the  lower  court 
coolly,  on  that  point,  say  that  the  others  were  wrong ,  and,  claim- 
ing that  to  be  true  which  we  have  pointed  out,  they  undertake  to 
correct  or  overrule  the  decision  of  the  higher  court,  and  to  de- 
cide that  there  is  no  such  distinction  as  was  taken  in  the  higher 
court  with  reference  to  Grant  v.  Norway ,  and  therefore,  as  a  ne- 
cessity, in  order  to  sustain  the  holding  in  Bank  of  Batavia  v.  New 
York,  &c.  R.  R.  Co.,  they  "  overrule  "  the  decisions  of  the  higher 
court,  and  assume  that  Grant  v.  Norway  was  "  overruled  "  in  Ar- 
mour V.  Michigan  Central  R.  R.  Co.,  when,  in  fact,  in  that  as  in 
the  previous  cases,  it  was  specially  pointed  out  that  in  deciding 
as  they  did  they  were  not  deciding  adversely  to  Grant  v.  Norway 
or  to  Coleman  v.  Riches. 

There  are  two  or  three  cases  outside  of  New  York  which  have 
followed  Armour  v.  Michigan  Central  R.  R.  Co.'^  One  of  these  is 
Savings  Bank  v.  Atchison,  &c.  R.  R.  Co.* 

The  Kansas  case  mainly  relies,  outside  of  the  New  York  case, 

1  25  N.  Y.  604-606.  v.  Michigan  Central  R.  R.  Co.,  65  N.  Y. 

2  33  Hun,  589,  at  p.  597.  Ill,  and  places  it  without  the  rule  es- 
^  65  N.  Y.  111.  tablished  by  Grant  v.  Norway  and  the 
*  20  Kan.  519.     There  is  an  important  numerous    English    and    American    cases 

feature  in  this  case  which  has  escaped  the  agreeing  with  that  case,  but  which  it  is 
notice  of  the  court  by  which  it  was  de-  unnecessary  here  to  take  up  time  and 
cided,  that  distinguishes  it  from  Armour     space  to  consider. 


PART    I.]  RAILWAYS.  33 

on  dicta  in  McNeill  v.  Hill  ^  and  in  Carr  v.  The  London  &  N".  W. 
Ry.  Co.^  But,  in  the  former  of  these  cases,  the  receipt  was  given 
by  the  principals  themselves,  which,  of  course,  involves  quite  an- 
other question  in  the  law  of  estoppel  than  where  it  is  claimed 
that  the  owners  of  a  ship  or  railroad  are  estopped  by  the  unau- 
thorized and  fraudulent  misrepresentation  of  a  shipmaster,  or 
railway  station-agent,  or  freight-hand,  of  the  receipt  of  goods 
which  have  never,  in  fact,  been  received.  The  other  case  relied 
on  is  even  a  less  applicable  authority  for  the  position  taken  in  the 
New  York  case  or  in  the  Kansas  case. 

In  Carr  v.  The  London  &  N.  W.  Ry.  Co.,^  the  plaintiff  bought 
goods  which  were  to  be  consigned  to  him  at  Liverpool  from  St. 
Helen's  by  the  defendants'  railway.  On  July  7,  1873,  the  plain- 
tiff received  notice  from  the  defendants  {from  the  defendants 
themselves,  observe)  informing  him  that  three  parcels  of  goods 
had  been  received  by  them  for  his  account,  and  that  they  held 
them  subject  to  his  order  and  to  the  payment  of  rent  and 
charges.  The  plaintiff  immediately  instructed  his  broker  to 
sell  the  whole.  Early  in  August  the  plaintiff  received  invoices 
of  the  three  parcels  from  his  vendors,  and  paid  for  the  whole 
by  an  acceptance  which  was  duly  honored.  The  goods  were 
sold  on  Aug.  21,  and  the  rent  and  charges  on  the  three  parcels 
were  paid  to  the  defendants  by  the  broker  ;  but  it  turned  out 
that  two  parcels  only  had  been  delivered  to  the  defendants 
(the  third  still  remaining  on  the  premises  of  the  vendors),  and 
the  plaintiff  was  obliged  to  pay  to  his  vendees  X5  4s.  Ic?.,  the 
difference  between  the  price  at  which  they  had  bought  the  third 
parcel  and  what  they  had  to  pay  for  other  goods.  The  defend- 
ants' servants  were  aware  on  July  9  that  they  never  had  received 
the  third  parcel,  but  no  notice  of  the  mistake  was  given  to  the 
plaintiff  until  Sept.  1,  after  the  goods  had  been  resold  and  the 
charges  paid.  It  was  held,  in  a  special  action  for  non-delivery 
of  the  third  parcel,  with  a  count  in  trover,  that  the  defendants 
were  not  estopped  from  showing  that  the  goods  had  never  reached 
their  hands  ;  and,  consequently,  they  could  neither  be  liable  in 
trover  nor  for  breach  of  contract  in  not  delivering  the  goods. 
There  is  no  more  in  the  holding  in  this  case,  nor  in  the  rules 
as  to  estoppel  laid  down  by  Brett,  J.,  at  pp.  316,  317,  to  sustain 
such  cases  as  Armour  v.  Michigan  Central  R.  R.  Co./  than  there 
is  in  Grant  v.  Norway,  Coleman  v.  Riches,  and  the  unbroken  series 
of  English  cases  which  have  followed  these  cases,  and  which  all 

1  Woolw.  (U.  S.  C.  C.)  96.  8  iMd. 

2  L.  K.  IOC.  P.  307.  *  65  N.  Y.  111. 


34  COMMENTARIES   ON   SALES.  [BOOK   III. 

the  ingenuity  of  successive  New  York  courts  of  appeal  failed,  not- 
withstanding their  efforts,  to  distinguish  or  explain  away. 

Sioux  City,  &c.  R.  R.  Co.  v.  First  National  Bank  ^  also  follows 
Armour  v.  Michigan  Central  R.  R.  Co.,^  and  makes  the  extraor- 
dinary assertion  ^  that  the  matter  of  estoppel  in  pais  "  was  en- 
tirely overlooked  in  Grant  v.  Norway,  and  the  cases  following  it." 
The  assertion  is  simply  absurd.  The  very  ground  taken  in  Grant 
V.  Norway  by  the  plaintiffs  was  stated  by  their  counsel*  in  lan- 
guage almost  identical  with  that  named  by  the  court  in  the  Ne-» 
braska  case  with  reference  to  estoppel,^  thus  :  "  The  defendants 
are  liable  for  the  act  -of  the  master  in  signing  bills  of  lading  im- 
porting that  goods  had  been  shipped,  and  thus  inducing  the  plain- 
tiffs to  part  with  their  money,  which  but  for  his  act  they  would 
not  have  done."     What  is  this  but  an  assertion  of  estoppel  ? 

So,^  Howard  v.  Tucker  ^  was  cited  to  show  that  the  defendants 
were  "  estopped,  as  against  the  assignee  of  the  hill^^  from  claiming 
that  the  goods  were  not  shipped.  And  ^  they  attempted  to  distin- 
guish the  case  from  Berkeley  v.  Watling,^  where  it  was  held  that 
Nave  (Watling's  co-defendant)  might  produce  evidence  that  the 
goods  were  not  shipped  in  fact,  and  was  not  estopjyed  hy  the  hill  of 
lading,  supposing  such  estoppel  to  exist  in  general,  inasmuch  as  the 
plaintiff  could  support  his  issue  only  by  making  Watling  (the 
alleged  consignor)  his  agent ;  and  if  Watling  was  so,  the  plaintiff 
was  cognizant,  through  him,  of  the  fact ; "  and  hence  that,  in  that 
case,  there  was  no  estoppel.  And  it  was  on  this  ground  that  the 
New  York  cases  undertook  to  distinguish  Grant  v.  Norway  from 
the  cases  they  were  deciding.  The  whole  doctrine  of  all  these 
well-decided  English  cases  is,  that  the  owner  is  not  estopped  by 
the  false  statement  of  the  shipmaster,  because  the  master  has 
no  express  or  implied  power  to  make  such  statement  to  bind  the 
owner;  the  master's  authority  being  of  a  special,  limited  kind, 
and  if  he  exceeds  it,  those  who  rely  upon  him  do  so  at  their  peril. 

The  only  other  case  which  we  have  found,  outside  of  New  York, 
which  purports  to  follow  Armour  v.  Michigan  Central  R.  R.  Co., 
is  Brooke  v.  New  York,  &c.  R.  R.  Co.^°  This  is  another  case 
where  a  railway  shipping  agent  fraudulently  signed  a  bill  of  lad- 
ing, or  railway  freight  receipt,  for  goods  which  were  not  received, 
and  the  facts  of  the  case  are  virtually  identical  with  those  in 
Armour  v.  The  Michigan  Central  R.  R.  Co.  There  is,  however, 
this  additional  feature  in  the  Pennsylvania  case.      The  bill  of 

1  10  Neb.  556.  «  At  p.  675. 

2  65  N.  Y.  111.  7  1  B.  &  Ad.  712. 
8  At  p.  564.  8  On  p.  676. 

4  At  p.  670.  9  7  A.  &  E.  29. 

5  See  10  Neb.  at  p.  564.  ^^  108  Pa.  529. 


PART  I.]  RAILWAYS.  35 

lading  or  receipt,  having  been  signed  in  New  York,  and  the  ac- 
tion having  been  brought  in  Pennsylvania,  the  court  held  that 
the  lex  loci  eontraetus  prevailed.  This  is,  of  course,  as  a  general 
principle,  correct.  But  a  question  might  be  raised,  where  two 
States,  as  New  York  and  Pennsylvania,  are  under  the  same  sys- 
tem of  law,  as  the  common  law,  whether  the  principle  would  be 
carried  so  far  as  to  make  a  grossly  wrong  decision  in  the  one 
State,  on  a  simple  point  in  common  law,  —  which  is  common  to 
them  both, —  binding  on  the  other  State.  We  very  much  doubt 
whether  the  rule  —  which  generally  applies  to  a  statute  or  system 
of  law  in  the  place  of  the  contract  differing  from  that  in  the  place 
of  i\\Q  forum —  should  properly  be  extended  so  far.^  But,  assum- 
ing that  it  should  be,  it  is  clear  that,  taking  the  New  York  cases 
as  a  whole,  they  show  that  the  newly  manufactured  New  York 
rule  is  not  applicable  where  the  agent's  representation  is  made, 
disconnected  with  negotiable  paper,  not  to  the  party  himself,  but 
to  a  co-party  to  the  fraud ;  the  party  claiming  either  as  consignee 
or  indorsee  of  a  bill  of  lading  (such  parties  as  to  rights  and 
powers,  independent  of  statutes,  occupying  precisely  the  same 
position) ;  ^  taking  only  such  rights  as  the  consignor  or  indorser 
had.  Or,  as  it  is  expressly  put  in  Armour  v.  Michigan  Central 
R.  R.  Co. :  ^  "  The  case  would  then  have  been  governed  by  the 
rule  that  an  assignee  of  a  thing  in  action  must  abide  by  the  case  of 
him.  of  whom  he  buys."  This,  as  well  as  the  position  taken  by  the 
same  court  in  previous  cases,  in  distinguishing  and  upholding 
Grant  v.  Norway,  is  conclusive  to  show  that  the  decision  on  the 
main  point,  in  Armour  v.  Michigan  Central  R.  R.  Co.,  is  not  law, 
even  according  to  the  decisions  of  the  New  York  Court  of  Appeals 
itself. 

This  difficulty,  as  we  have  pointed  out,*  was  observed  in  the 
lower  court  in  New  York  (the  Supreme  Court)  in  Bank  of  Bata- 
via  V.  New  York,  &c.  R.  R.  Co.  ;^  and  they  (the  inferior  court), 
to  get  clear  of  this  difficulty,  assumed  to  do  that  which  the  Court 
of  Appeals  in  a  succession  of  cases  refused  to  be  considered  as 
doing,  namely,  to  overrule,  instead  of  distinguishing  and  sustain- 
ing. Grant  v.  Norway.  So  it  is  clear  that,  on  the  very  principle 
on  which  they  claimed  to  act,  in  Pennsylvania,  as  following  the 
law  in  the  locus  contractus^  they  should  have  held  exactly  the  con- 
trary, on  the  main  point  with  which  they  had  to  deal,  to  that 
which  they  did  hold. 

1  The  United  States  Supreme  Court  ilietseq.;  3  Kent's  Com.  (13th  ed.)  207, 
have   frequently,   we  think  correctly,  re-     n.  1. 

fused  to  follow  the  holding  of  the  State  8  55  n",  y.  at  p.  122. 

courts  in  a  wron;^  holding  at  common  law;  *  Supra,  p.  32. 

or,  as  they  designate  it,  "general  law."  ^  33  Hun,  at  p.  597. 

2  See  Abb.  on  Shipping,  12th  Eng.  ed. 


36  COMMENTARIES   ON   SALES.  [BOOK   III. 

The  Pennsylvania  court  also  assumed  that  the  decision  was  in 
accordance  with  the  law  of  Pennsylvania ;  but  we  have  entirely 
failed  to  find  any  previous  case  decided  in  that  State  whicli  will 
at  all  sustain  the  holding  that  a  shipmaster,  or  railway  shipping 
clerk,  has  the  power,  by  fraudulently  signing  bills  of  lading  or 
railway  receipts  for  goods  never  received,  to  bind  the  ship  and 
owners,  or  the  railway  company,  by  such  a  fraudulent  act ;  not- 
withstanding the  special,  limited,  well-defined  power  which  the 
shipmaster  or  shipping  clerk  possesses. 

This  is  a  very  different  thing  from  an  agent  having  power  to 
bind  his  principal  within  the  scope  of  his  employment,  notwith- 
standing the  "  private  instructions  "  of  the  principal ;  which  was 
the  case  in  Adams  Express  Co.  v.  Schlessinger,^  which  was  the 
solitary  Pennsylvania  case  on  which  the  court  relied  in  their  judg- 
ment in  Brooke  v.  New  York,  &c.  R,  R.  Co.^ 

The  English  case  relied  on  in  this  case  (Coventry  v.  Great  East- 
ern Ry.  Co.)^  is  also  clearly  distinguishable.  In  this  English  case 
the  defendants  were  held  to  be  estopped  by  their  own  act.  There 
is  no  question  of  wrong-doing  or  fraud  by  an  agent,  or  of  an 
agent  acting  outside  of  the  scope  of  his  employment,  or  of  agency 
at  all  involved  in  the  case.  The  head-note  well  states  the  case : 
"  The  defendants  received  a  consignment  of  wheat  and  issued  a 
delivery  order  for  it,  which  came  into  the  hands  of  B.  Upon  this 
delivery  order  B.  obtained  advances  from  the  plaintiffs.  Shortly 
afterwards  the  defendants  issued  a  second  delivery  order  in  respect 
of  the  same  consignment  of  wheat.  The  two  delivery  orders  were 
different,  and  such  as  might  be  reasonably  supposed  to  relate  to 
distinct  consignments  of  wheat.  Upon  this  second  delivery  order 
B.  obtained  further  advances  from  the  plaintiffs,  who  were  under 
the  belief  that  the  delivery  orders  related  to  distinct  consignments 
of  wheat.  B.  liaving  afterwards  become  insolvent,  it  was  held, 
that  the  defendants  were  estopped  hy  their  negligence  from  show- 
ing that  the  two  delivery  orders  related  only  to  one  consignment 
of  wheat,  and  that  they  were  liable  to  compensate  the  plaintiffs 
for  the  loss  sustained  by  them  through  the  advances  to  B."  This, 
we  think,  is  unquestionably  sound  law,  but  it  has  no  more  to  do 
with  the  important  point  raised  and  decided  by  Grant  v.  Norway, 
Coleman  v.  Riches,  and  the  many  other  English  and  American- 
cases  which  have  followed  and  approved  these  cases,  than  the 
noted  Tenterden  Steeple  has  to  do  with  Goodwin  Sands. 

We  think  that  the  decision  in  Armour  v.  Michigan  Central  R.  R. 
Co.*  is  not  only  wrong  in  itself,  but  that  it  is  calculated,  if  gener- 

1  75  Pa.  246.  »  11  Q.  B.  Div.  776. 

2  108  Pa.  529,  546.  *  65  N.  Y.  111. 


I 


PART   I.]  RAILWAYS.  37 

ally  deemed  to  be  law,  to  be  so  pernicious  in  its  consequences  that 
no  trouble  should  be  spared  in  order  that  its  unsoundness  may 
be  clearly  and  conclusively  exposed.  If  every  railway  shipping 
agent,  or  freight  agent  at  any  little  railway  station,  or  master  of 
a  ship,  has  power,  by  fraudulently  signing  bills  of  lading  or  freight 
receipts,  in  collusion  with  other  fraudulent  parties,  to  bind  the 
ship  and  owners,  or  railway,  for  goods  not  received,  the  effect 
could  not  long  fail  to  be  most  disastrous.  It  is  not  strange,  there- 
fore, when  the  judgment  of  Comstock,  J.,  pointing  out  in  Farm- 
ers', &c.  Bank  v.  Butchers',  <fec.  Bank  ^  how  unsound  was  the 
distinction  which  the  majority  of  the  court  sought  to  establish 
with  reference  to  the  English  cases,  was  not  assented  to  by  the 
majority  of  the  court,  that  tlie  legislature  of  New  York  should  by 
legislation  endeavor,  as  they  did  do,  by  acts  passed  immediately 
after  that  decision  (which  subsequently  culminated,  as  we  have 
seen,  in  Armour  v.  Michigan  Central  R.  R.  Co.^),  to  neutralize,  to 
some  extent,  the  baleful  consequences  of  the  establishment  of  such 
principles  as  those  we  have  been  deprecating ;  rendering  it  penal 
for  any  person  to  sign  bills  of  lading,  receipts  or  vouchers  for 
goods,  where  no  such  goods  had  been  received.^ 

As  we  have  stated,  the  question  in  England  is  conclusively  set- 
tled. Since  the  decision  in  Grant  v.  Norway,-  that  case  has  been 
followed,  over  and  over  again,  by  a  succession  of  courts,  without 
any  dispute  as  to  the  soundness  of  the  decision  by  counsel,  courts, 
or  text-writers  there. 

In  this  country,  too,  the  doctrine,  conclusively  established  in 
England,  has  received  the  sanction  of  the  leading  law-writers  and 
courts.  Thus,  in  3  Kent's  Com. :  ^  "If  the  master  signs  a  bill 
of  lading  for  goods  not  on  board,  or  at  least  delivered  alongside, 
which,  perhaps,  is  enough,  he  is  not  acting  within  the  apparent 
scope  of  his  authority,  and  will  not  make  the  owners  of  the  ship 
liable  even  to  an  indorsee  of  the  bill  for  value."  So,  Professor 
Parsons:^  "But  the  question  arises  whether  if  a  captain  sign  bills 
of  lading  before  the  goods  are  on  board,  or  delivered  to  some  one 
authorized  to  receive  them,  and  they  are  never  shipped,  the  own- 
ers of  the  vessel  are  estopped  from  showing  this  fact  in  a  suit 
brought  against  them  for  non-delivery  by  bond  fide  indorsees  of 
the  bill  of  lading.  It  is  clear  that  they  are  not.  It  is  a  fraud  on 
the  part  of  the  master  to  sign  the  bills  before  the  goods  are  on 

1  16  N.  Y.  at  p.  M5  et  seq.  show  that  that   was  declared  to  be  law 

2  65  N.  Y.  111.  wliich    was   never  previously  understood 
8  New   York    Acts   of    1858,    c.    326,      to  have  been  so. 

amended  by  Acts  of  1859,  c.   353.     The  ♦  10  C.  B.  665. 

very  fact  of  the   passage   of  these   acts,  ^  13th  ed.  207,  n.  1. 

under  the  circumstances,  goes  very  far  to  ^1  Mar.  Law,  135,  n.  2. 


38  COMMENTARIES    ON    SALES.  [bOOK    III. 

board,  and  an  act  not  within  the  scope  of  his  authority  as  master. 
And  the  owners  therefore  are  not  liable."  So,  again,  b)'  Chief 
Justice  Redfield :  "  A  bill  of  lading  has  been  held  conclusive 
against  the  master  of  a  vessel  in  favor  of  a  consignee,  not  a  party 
to  the  contract,  but  who  had  advanced  money  on  the  faith  of  its 
statements  as  to  the  amount  and  condition  of  the  property,  and 
which  from  the  whole  instrument  and  the  usages  of  trade  may  be 
regarded  as  absolute  statements  from  the  master's  own  knowl- 
edge ;  but  it  is  not  conclusive  against  the  owners  as  to  property 
not  shipped,  the  master  having  no  authority  in  regard  to  that." 
And,  again :  "  As  a  general  principle  the  contract  of  the  master 
in  regard  to  freight  binds  the  ship  and  the  general  owner  of  the 
ship,  although  chartered  by  another,  and  the  master  is  acting 
under  the  orders  of  the  charterer.  But  no  such  implication  arises 
in  reference  to  bills  of  lading  for  property  not  shipped,  designed 
to  be  instruments  of  fraud,  and  they  create  no  lien  upon  the  in- 
terest of  the  general  owner  although  the  charterer  was  the  per- 
petrator of  the  fraud.  And  although  tlie  charterer  is  estopped  in 
such  case  from  showing  that  no  property  was  shipped,  that  es- 
toppel will  not  bind  the  general  owner."  ^  And  Story,  in  his  Con- 
tracts,^  strikes  at  the  very  root  of  the  New  York  decisions  :  "  An 
agent  employed  for  a  special  object  may  uso^the  ordinary  means 
for  accomplishing  it,  and  if  he  make  false  representations  in  the 
due  course  of  such  transactions  the  principal  is  bound  by  them. 
And  any  fraud  or  misrepresentation,  which  would  bind  the  prin- 
cipal, if  he  made  it  himself,  will  equally  bind  him,  if  made  by  his 
agent  within  the  scope  of  his  authority,  and  in  the  course  of  his 
business.  But  fraudulent  acts  of  the  agent  beyond  the  scope  of 
his  authority,  and  especially  if  they  be  in  contravention  of  his 
duty  and  against  the  rights  of  his  principal,  will  not  be  binding 
upon  the  principal.  Where,  therefore,  the  agent  of  a  wharfinger, 
whose  duty  it  was  to  give  receipts  for  goods  actually  received  at 
the  wharf,  fraudulently  gave  a  receipt  for  goods  which  had  not 
been  received,  the  principal  was  held  not  to  be  responsible.  So, 
also,  the  representations  of  a  professed  agent,  although  they 
should  form  a  part  of  the  res  gestae,  would  not  be  available  to 
jrrove  the  fact  of  his  agency  or  the  extent  of  his  authority,  if 
questioned  by  his  principal,  however  publicly  such  declarations 
should  be  made." 

The  very  reverse  of  this  sound  principle  is  the  basis  of  the  un- 
sound doctrine  of  the  late  New  York  cases.  They,  in  effect,  would 
make  the  acts  of   the  agent,  instead  of  those  of   the  principal, 

1  2  Rcdf.  on  Railways  (6th  ed.^,  183,  2  5th  ed.  §§  214,  215. 

184. 


PAIiT   I.]  RAILWAYS.  39 

binding  upon  the  latter.  It  is  the  holding  out  of  the  principal, 
not  that  of  the  agent,  which  places  the  liability  on  the  principal.^ 

The  vicious  New  York  "  rule,"  as  it  finally  culminated  in  the 
case  of  Armour  v.  Michigan  Central  R.  R.,^  involving  the  disas- 
trous consequences  to  the  great  railroad  systems  of  this  country 
to  which  we  have  referred,  was,  very  early  in  its  history,  stated  in 
rather  a  mystical  or  metaphysical  manner ;  then  more  plainly ; 
until  at  length  it  came  down  in  effect  to  the  simple  (in  more 
senses  than  one)  statement  that  where  an  agent  has  the  power  to 
do  an-  act,  he  has  the  power  to  do  that  act  indefinitely  ;  the  mere 
fact  of  his  doing  it  being  a  guarantee  to  all,  each  time  he  per- 
forms the  act,  that  that  is  the  particular  time  in  which  he  had 
the  power  to  do  it,  and  so  on  ad  infinitum.  Or,  where  he  has  the 
power  to  do  an  act  only  under  certain  conditions,  his  performing 
it  at  all  makes  it  good,  as  that  is  an  authorized  representation  and 
guarantee  to  all  that  the  act  is  done  according  to  or  within  the 
condition,  even  though  by  inquiry  it  can  be  ascertained  that  such 
is  not  the  case ;  the  parties  acting  on  such  representation  by  the 
agent  "  not  being  bound  to  make  any  inquiries  aliunde.'" 

We  unhesitatingly  say,  after  an  exhaustive  examination  of  the 
question  that  this  "  rule,"  as  so  developed,  is  not  law,  but  that  it 
is  unmitigated  nonsense.  In  order  to  sustain  such  a  ridiculous 
"  rule,"  which  is  a  complete  perversion  of  the  proposition  as  it 
was  at  first  stated,  they  had  first  to  explain  away  such  well- 
decided  cases  as  Grant  v.  Norway,  and  Coleman  v.  Riches,  the 
rationale  of  which  cases  stood  directly  in  their  way.  Then,  when 
it  was  found  that  their  attempt  to  explain  and  distinguish  away 
Grant  v.  Norway  and  Coleman  v.  Riches  had  signally  failed, 
the  ridiculous  perverted  "  rule  "  must  stand  in  any  event,  and  if 
not  consistent  with  well-decided  cases  which  showed  its  unsound- 
ness and  absurdity,  then  in  the  slang  of  the  New  York  Court  of 
Appeal,  which  had  manufactured  or  developed  the  spurious  "  rule," 
"  So  much  the  loorse  for  those  cases  !  " 

If  the  "  rule  "  were  law,  the  whole  doctrine  of  agency  would  be 
reversed.  We  have  already  shown  this  by  numerous  instances 
which  exhibit  the  silliness  of  the  so-called  "  rule."  Take  in  addi- 
tion the  following  extract  from  the  leading  work  on  the  question, 
Story  on  Agency.  Referring  to  a  special  agent,  Judge  Story  says ;  ^ 
"i/  he  exceed  the  special  and  limited  authority  conferred  on  him,  the 
principal  is  not  hound  hy  his  acts,  hut  they  hecome  mere  nullities,  so 
far  as  he  is  concerned.^''     And,  quoting  from  Smith's  Mercantile 

1  See    also    2    Daniel    on    Neg.    Ins.     American    text-writers    from    whom    we 
§  1733  ;    Hutchinson  on  Carriers,  §  122,     have  quoted, 
to  the  same  eii'ect  as  the  otlier  leading  2  55  ^  y.  Ill, 

8  §  126. 


40  COMMENTARIES   ON   SALES,  [BOOK   III. 

Law,i  to  the  same  effect :  "  It  is  the  duty  of  the  party  dealing 
with  such  an  one,  to  ascertain  the  extent  of  his  authority  ;  and  if 
he  do  not  he  must  abide  the  consequences."  ^ 

Again :  "  If  one,  not  being  a  factor,  should  be  authorized  to 
make  a  sale,  and  he  should  violate  his  private  instructions,  and 
deviate  from  his  authority  in  the  sale,  the  principal  would  not  be 
bound.  In  such  a  case  no  general  authority  is  presumed,  and  he 
who  deals  with  such  an  agent  deals  with  him  at  his  own  peril."  ^ 
And  again  :  *  "  The  restrictions  of  this  implied  authority  of  part- 
ners to  bind  the  partnership  are  apparent  from  what  has  already 
been  stated.  Uach  partner  is  an  agent  07ily  in  and  for  the  busi- 
ness of  the  firm ;  and  therefore,  his  acts  beyond  that  business  will 
not  bind  the  firm.''''  ^ 

But,  according  to  the  New  York  "  rule,"  where  an  agent  has 
the  power  to  perform  an  act  at  all,, its  mere  performance  is  a 
representation  and  guarantee,  binding  on  the  principal  ("  without 
the  necessity  of  making  any  inquiry  aliunde  "),  that  the  act  has 
been  performed  within  the  power.  Hence,  though  a  partner  has 
no  power  to  bind  a  firm  for  acts  done  outside  of  the  business 
of  the  firm,  yet,  as  he  has  power  to  bind  the  firm  for  acts  done 
bo7id  fide  within  the  business  of  the  firm,  and  as  his  every  act  is 
a  representation  and  guarantee,  binding  on  his  co-partners,  that 
his  act  is  so  done  within  the  business  of  the  firm,  "  though  it  can 
be  ascertained  by  inquiry  that  it  is  not ; "  therefore  he  has  power 
to  bind  the  firm  for  his  acts  done  outside  of  the  business  of  the 
firm.  Ergo,  though  he  has  not  power  to  bind  his  co-partners  for 
his  acts  done  outside  of  the  business  of  the  firm,  yet  he  has  power 
so  to  bind  them. 

Bank,  1 7  Mass.  479  ;    Kerns  v.  Piper,  4 

1  3(1  ed.  p.  108,  Watts,  222  ;    Wilson  v.  Peverly,  2  N.  H. 

2  And,  besides  other  text-books,  citing  548  ;  Brown  v.  Purviance,  2  Har.  &  G. 
for  these  propositions,  Fenn  v.  Harrison,  316  ;  Harris  v.  Nicholas,  5  Munf.  483  ; 
3  T.  R.  757;  Howard  v.  Braithwaite,  1  Puryer  v.  Thompson,  5  Humph.  397; 
Ves.  &  B.  209,  210  ;  Whitehead  v.  Tuck-  Campbell  v.  Stairt,  2  Murphy,  389  ;  Arm- 
ett,  15  East,  408  ;  Pickering  v.  Busk,  15  strong  v.  Cooley,  5  fiilm.  509  ;  TuUer  v. 
East,  38,  43,  44  ;  Muun  v.  Commission  Voyt,  13  111.  277;  South  wick  v.  Estis,  7 
Co.,  15  Johns.  44  ;  Rossiter  «.  Rossiter,  8  Cush.  385;  McClenaghan  v.  Brock,  5 
Wend.  494;  Andrews  y.  Kneeland,  6  Cow.  Rich.  (S.  C.)  17;  Moore  v.  Sanborne,  2 
354;  Waters  v.  Brogden,  1  Y.  &  Jer.  457;  Mich.  519, 

Brown  v.  Trantum,  6  Mill.  (La.)  47;  Beals  ^  gtory  on  Agency,  §  131,  citing  Fenn 

V.  Allen,  18  Johns.  363  ;  Allen  v.  Ogden,  v.   Harrison,  3  T.  R.  757,   762  ;  4  T.  R. 

1  Wash.  C.  C.  174;  Woodin  v.  Burford,  177;    East  India  Co.  v.  Hensley,  1   Esp. 

2  C.  &  Mees.  391;  Jordan  v.  Norton,  4  112  ;  8  Kent's  Com.  (4th  ed.)  620;  Pick- 
M.  &  W.  155  ;  Sykes  v.  Giles,  5  M.  &  W.  eriug  v.  Busk,  15  East,  38,  43  ;  Gibson  v. 
645;  Smith  v.  East  India  Co.,  16  Sim.  Colt,  7  Johns.  390;  Munn  r.  Commission 
76  ;  Ladd  v.  Town  of  Franklin,  37  Conn.  Co.,  15  Johns.  44,  54  ;  Rossiter  v.  Rossi- 
53  ;  Martin  v.  Farnsworth,  49  N.  Y.  555  ;  ter,  8  Wend.  494  ;  Tradesmen's  Bank  v. 
Cutler  V.  Bovd,  124  Mass.  181;  Horner  v.  Astor,  11  Wend.  87;  Lobdell  v.  Baker,  1 
Sinnott,  119"  Mass.  191;  Herbert  w.  Knee-  Met.  193. 

land,    32  Vt.  316  ;    Hatch  v.  Taylor,  10  *  At  §  125. 

N.   H,   538,      See  also  Foster  v.   Essex  ^  Hasleman  v.  Young,  5  A,  &  E.  833. 


PART   I.]  RAILWAYS.  41 

By  the  application  of  the  New  York  rule,  as  it  now  stands,  to 
the  unquestioned  and  unquestionable  principles  of  the  law  of 
agency  the  conclusion  is  reached,  over  and  over  again,  that,  while 
an  agent  has  a  limited  power,  he  has  not  a  limited  power. 

Another  American  writer,^  while  obviously  failing  to  under- 
stand the  New  York  "  rule  "  which  he  quotes,^  or  to  appreciate 
its  absurdity,  lays  down  with  Story  the  correct  rule  in  the  law  of 
agency,  which  conclusively  demonstrates  that  absurdity;  thus :  "Evi- 
dence of  an  agent's  own  statements  or  admissions  is  not  admissi- 
ble against  his  principal  for  the  purpose  of  establishing,  enlarging, 
or  renewing  his  authority  ;  nor  can  his  authority  be  established  by 
showing  that  he  acted  as  agent,  or  that  he  claimed  to  have  the  pow- 
ers which  he  assumed  to  exercised  ^  "  The  fact  of  the  agent's 
authority  can  neither  be  established,  nor  can  its  scope  or  effect  be 
extended  or  enlarged,  by  his  own  statements,  representations,  or 
declarations,  so  as  to  charge  the  principal.''^  ^  And  still  more  con- 
clusive :  "  The  authority  of  the  special  agent  being  in  its  nature 
limited,  its  scope  is  much  more  easy  of  determination,  and  must 
not  be  exceeded  ;  or,  as  the  rule  is  ordinarily  stated,  his  authority 
must  be  strictly  pursued,  a7id  if  it  is  not  the  principal  will  not  be 
bound"  ° 

To  sustain  these  simple,  clear,  well-established  rules  of  the  law 
of  agency,  which  strike  at  the  very  root  of  the  absurd,  vicious,  per- 
nicious New  York  "  rule,"  some  fifty  well-decided  cases  are  cited. 
And  in  New  York  itself,  when  the  judges  were  much  abler  law- 
yers than  they  appear  to  have  been  in  recent  times,  the  same 
principle  has  been  made  perfectly  clear.  Thus,  in  Rossiter  v. 
Rossiter,^  Savage,  C.  J.,  in  delivering  the  judgment  of  the  court, 
says :  "  The  distinction  between  a  general  and  special  agent  is 
well  settled  ;  the  acts  of  the  former  bind  the  principal,  whether 
in  accordance  with  his  instructions  or  not ;  those  of  the  latter  do 
not,  unless  strictly  within  his  authority."  And  again,  in  Trades- 
men's Bank  v.  Astor : ''  "  If  a  general  agent  receive  particular  in- 
structions, which  he  disregards,  his  acts  as  agent  are  nevertheless 
binding  upon  his  principals.  For  instance,  he  is  authorized  to 
sell  an  article  at  a  particular  price,  and  he  sells  for  less,  the  sale 
is  good ;  but  if  a  special  agent  were  to  do  so,  the  sale  would  be 
void."  ^ 

That  the  English  cases  are  entirely  antagonistic  to  the  New 
York  "  rule,"  notwithstanding  the  efforts  of  tlie  New  York  Coui-t 

1  Mecham  on  Agency.  «  8  Wend.  494,  497. 

2  §  717.  T  11  Wend.  88,  90. 

'  §  100.  8  See  additional  well-decided  New  York 

*  §  716.  cases  stated  infra. 

6  §  288. 


42  COMMENTARIES    ON   SALES.  [BOOK  III. 

of  Appeals  to  show  otherwise,  is  well  shown  by  the  court  in 
Adams  Express  Co.  v.  Trego.^  The  court  there  say,  in  consider- 
ing the  cognate  question  as  to  the  liability  of  a  principal  under  a 
notice  to  an  agent :  "  It  is  true,  notice  to  an  agent  of  facts  arising 
from  and  growing  out  of  the  subject-matter  of  his  agency  is  con- 
structive notice  to  the  principal.  But  this  rule  has  no  application 
to  the  case  where  the  question  is,  whether  the  act  relied  on  to 
bind  the  principal  was  done  within  the  limits  and  scope  of  the 
agent's  authority  or  not.  If  knowledge  of  the  agent  could  fix 
liability  upon  the  principal  in  such  case,  irrespective  of  the  limit 
of  the  former's  authority,  the  cases  of  Grant  v.  Norway ,2  Hubber- 
sty  V.  Ward,^  Coleman  v.  Riches,*  and  many  other  cases  to  which 
reference  could  be  made,  would  have  resulted  in  \ery  different 
judgments  from  what  they  did.  In  the  first  two  cases  named  it 
was  held  that,  though  a  master  of  a  vessel  has  a  general  authority 
to  execute  bills  of  lading  for  goods  shipped,  he  has  no  power  to 
charge  the  owner  by  signing  bills  of  lading  for  a  greater  quantity 
of  goods  than  those  on  board,  and  that  a  bill  of  lading  so  signed 
womd  not  bind  the  owner,  even  in  the  hands  of  innocent  third 
parties.  And,  in  the  last-named  case,  where  the  agent  of  a  whar- 
finger, whose  duty  it  was  to  give  receipts  for  goods  actually  re- 
ceived, gave  a  rpceipt  for  goods  which  had  not  been  received,  the 
principal  was  held  not  to  be  responsible,  even  to  third  parties  who 
had  been  deceived  by  the  receipt,  because  it  was  not  within  the 
scope  of  the  agent's  authority  in  the  course  of  his  employment  to 
give  such  a  receipt.'^ 

We  have  thus  fully  shown  the  unsoundness  of  the  vicious 
"  rule  "  upon  which  Armour  v.  Michigan  Central  R.  R.  Co.^  pur- 
ports to  be  founded.  We  have  also  shown  that  the  whole  body 
of  English  law  is  opposed  to  the  holding  in  that  case,  and  that  all 
the  leading  text-writers  in  this  country  on  the  subject  quote  ap- 
provnigly,  and  do  not  for  one  moment  question  the  soundness  of 
that  series  of  well  and  ably  decided  English  cases,  decided  suc- 
cessively in  the  courts  of  Common  Bench,  Queen's  Bench,  Ex- 
chequer, and  House  of  Lords,  which  in  England  have  conclusively 
settled  the  law.  Further,  we  have  pointed  out  that  while  the 
"  rule  "  itself,  as  variously  stated  in  the  different  late  New  York 
cases,  is  unsound  and  absurd,  the  very  ground  on  which  it  was 
sought  to  sustain  it,  by  showing  that  it  was  not  opposed  by  well- 
decided  English  cases,  conclusively  settled  the  unsoundness  of 
Armom-  V.  Michigan  Central  R.  R.  Co.,  according  to  the  admission 
even  in  that  case  itself. 

1  35  Md.  47,  68.  *  29  Eng.  L.  &  En.  323. 

2  10  C.  B.  665.  6  65  N.  Y.  111. 

3  8  Ex.  330. 


PART   I.]  RAILWAYS.  43 

We  now  propose  showing  by  the  well-decided  cases  in  this 
country  that  not  only  in  principle,  as  we  have  already  shown,  but 
by  the  overwhelming  weight  of  authority,  the  law  in  this  country 
is  held  to  be  as  in  England.  In  fact  until  the  decision  of  those 
cases  in  New  York  in  recent  times  there  was  no  more  question  as 
to  the  law  in  this  country  than  there  was  in  England. 

We  find  that  over  three-quarters  of  a  century  ago,  and  long 
before  Grant  v.  Norway  was  decided,  virtually  the  same  principle 
which  governs  the  English  cases  was  recognized  by  high  authority 
in  this  country.  In  Walter  v.  Brewer  ^  (a.  d.  1814),  where  the 
owner  went  in  the  ship  to  attend  to  the  business  of  the  voyage, 
and  to  bring  home  a  cargo  for  himself,  and  to  take  no  freight  for 
others,  and  the  master  clandestinely,  and  without  knowledge  of 
the  owner,  took  certain  bales  of  merchandise  on  freight,  and 
signed  bills  of  lading  therefor,  which  tvere  indorsed  to  the  jjlaintiff 
(an  innocent  third  party  without  notice)  for  a  valuable  considera- 
tion ;  on  a  suit  against  the  owner  for  the  non-delivery  of  the  bales, 
it  was  held  (Parker,  J.,  afterwards  C.  J.,  delivering  the  judgment) 
that  the  owner  was  not  liable,  the  act,  under  the  circumstances, 
having  been  outside  the  scope  of  the  master's  employment. 

This  is  a  much  stronger  case  than  Grant  v.  Norway  or  Armour 
V.  Michigan  Central  R.  R.  Co. ;  for  here  the  goods  for  whicli  the 
master  gave  the  bills  of  lading  were  actually  shipped  on  board 
the  vessel,  while  in  the  other  cases  named  there  was  no  shipment 
at  all.  But  the  principle  is  the  same  in  both  instances,  the  mas- 
ter in  neither  case,  by  signing  bills  of  lading  outside  the  scope  of 
his  employment,  having  the  power  to  bind  the  owner  even  to  an 
innocent  consignee  or  indorsee  for  value  of  the  bills  of  lading:. 

So,  in  New  York,  forty  years  ago,  where  a  master  signed  a  bill 
of  lading  purporting  to  bind  the  owners,  they  were  held  not  liable 
under  the  circumstances,  the  act  of  his  signing  the  bill  of  lading 
as  he  did  being  not  within  the  scope  of  his  agency.^  In  another 
New  York  case  (ten  years  later)^  the  principle  of  the  badly-decided 
New  York  case.  Armour  v.  Michigan  Central  R.  R.  Co.,*  is  even 
more  clearly  condemned.  It  was  there  held  by  the  whole  court 
—  very  much  in  effect  as  is  enacted  by  the  English  Bills  of 
Lading  Act,  18  &  19  Vic.  c.  Ill,  §  3,  which  is  little,  if  anything, 
more  than  an  affirmation  of  the  common  law  on  the  point  — 
(Robertson,  J.,  delivering  the  judgment,  and  the  other  judges 
concurring)  that  while  the  master  was  estopped  by  the  bill  of 
lading,  and  "  clearly  became  liable  for  non-delivery  of  the  articles 
alleged  to  be  shipped,"  yet  "  that  no  recovery  could  be  had  in  an 

1  11  Mass.  99.  3  Byrne  v.  Weeks,  7  Bosw.  372,  379. 

2  Davis  V.  Craue,  4  Sandf.  355.  *  65  N.  Y.  111. 


44  COMMENTARIES   ON   SALES.  [bOOK   III. 

action  against  the  owner  of  the  vessel  hy  the  shipper  for  non-deliv- 
ery of  the  goods,  because  they  never  were  shipped;  nor  hy  the 
assignee  of  the  hill  of  lading,  because  he  could  only  claim  through 
the  shipper y 

In  such  case,  the  estoppel  would  work  against  the  master,  not 
against  the  owner;  against  the  agent,  not  against  the  principal. 
If  later  New  York  cases  had  acted  on  such  sound  principles  as 
these,  interests  of  vast  importance  would  not  be  imperilled,  by 
the  fraudulent  contrivance  of  irresponsible  parties,  as  they  have 
been  by  such  an  atrocious  decision  as  that  in  Armour  v.  Michigan 
Central  R.  R.  Co.i 

The  general  principle  governing  this  class  of  cases  is  well  laid 
down  by  that  able  lawyer,  Shaw,  C.  J.,  in  delivering  the  judgment 
of  the  court  in  Massey  v.  Beecher,^  where  an  agent  had  a  limited 
power  to  make  purchases,  and  had  exceeded  that  limit.  The 
point  of  the  case  is  well  stated  in  the  head-note  of  the  case,  thus : 
"  The  defendant,  by  an  instrument  under  seal,  appointed  one 
Pierce  his  attorney,  for  him,  and  as  his  agent,  to  purchase  books, 
paper,  and  stationery,  for  the  purpose  of  carrying  on  business  in 
A.,  and  the  same  to  sell  again  for  his  benefit  and  on  his  account, 
etc.,  with  a  proviso,  '  that  said  Pierce  shall  not  make  purchases, 
or  incur  debts,  exceeding  in  amount,  at  any  one  time,  the  sum  of 
$2000.'  The  plaintiff  having  sold  goods  to  Pierce,  and  brought 
his  action  therefor  against  the  defendant,  it  was  held,  that  the 
plaintiff  must  show,  that  the  goods  were  sold  under  the  power  to 
Pierce,  as  the  agent  of  the  defendant,  and  not  upon  the  personal 
credit  of  Pierce ;  and  that,  if  at  the  time  of  the  sale  by  the  plain- 
tiff to  Pierce,  the  latter  had  already  exceeded  the  limit  of  his 
power,  the  plaintiff  would  not  be  entitled  to  recover,  by  showing 
that  at  the  time  of  the  purchase  Pierce  represented  that  he  would 
not  thereby  exceed  his  limit ;  or  by  showing  that  at  the  time  of 
the  sale,  the  plaintiff  had  inquired  of  Pierce  as  to  his  agency, 
and  had  been  informed  by  him  that  it  was  not  full,  and  having 
no  reason  to  suspect  the  truth  of  such  declaration,  had  there- 
upon sold  the  goods  to  Pierce  as  agent."  This  strikes  at  the  very 
root  of  the  pernicious  New  York  "  rule." 

Shaw,  C.  J.,  in  delivering  the  judgment,  said  :  "  The  precise 
point  is  this,  whether,  if  Pierce,  through  design  or  mistake,  rep- 
resented to  the  plaintiff,  that  when  he  made  the  purchase  in 
question,  he  had  not  purchased  on  the  credit  of  his  principal  to 
the  amount  of  $2000,  when,  in  truth,  his  purchases  exceeded 
that  sum,  the  defendant  was  bound  by  it.  It  is  unquestionably 
true,  that  the  statements  and   representations  of   an  agent,  in 

1  65  N.  Y.  111.  2  57  Mass.  511,  516. 


PART   I.]  RAILWAYS.  45 

transacting  the  business  of  liis  principal,  within  the  scope  of  his 
authority,  are  as  binding  on  his  principal  as  any  other  acts  done 
within  the  scope  of  his  authority  ;  they  are  res  gestce,  and  are  acts. 
But  an  agent  cannot  enlarge  his  authority  any  more  by  his  decla- 
rations than  by  his  other  acts ;  and  the  rule  is  clear,  that  the 
acts  of  an  agent  not  within  the  scope  of  his  authority  do  not 
bind  the  principal.  It  is  often  said,  indeed,  that  one  is  bound  by 
the  acts  of  a  general  agent,  though  done  against  his  instructions. 
This  is  because  the  acts  are  within  the  scope  of  his  authority ; 
and  the  violation  of  his  instructions,  in  the  execution  of  such 
authority,  is  a  matter  solely  between  himself  and  his  principal, 
which  cannot  affect  a  stranger  dealing  with  him  without  express 
notice.  The  argument  is,  that  the  defendant  ought  to  be  bound, 
because  Pierce  was  his  agent,  and  he,  by  his  letter  of  attorney,  had 
put  it  in  his  power  to  make  such  purchase.^  This,  it  appears  to 
us,  assumes  the  very  point  to  be  proved.  The  plaintiff  knew  that 
the  agent  was  limited  to  $2000.  He  knew,  therefore,  that  if  he 
had  purchased  to  that  amount,  his  power,  by  its  own  limitation, 
was  at  an  end.  If  it  were  otherwise,  a  power  to  purchase  to  the 
amount  of  $2000  would  operate  as  a  pozver  to  purchase  to  an 
unlimited  amount?  But  it  is  urged,  that,  upon  this  construction, 
no  one  could  safely  deal  with  the  agent.  This  objection,  we 
think,  is  answered  by  the  consideration,  that  no  one  is  bound  to 
deal  with  the  agent.  Whoever  does  so  is  admonished  of  the 
extent  and  limitation  of  the  agent's  authority,  and  must  at  his 
own  peril  ascertain  the  fact  upon  which  alone  the  authority  to 
bind  the  constituent  depends.  Upon  an  authority  so  peculiar  and 
limited,  it  is  not  to  be  presumed  that  one  would  deal  with  the 
agent  who  had  not  full  confidence  in  his  honesty  and  veracity, 
and  in  the  accuracy  of  his  books  and  accounts.  To  this  extent 
the  seller  of  the  goods  trusts  the  agent,  and  if  he  is  deceived  by 
him,  he  has  no  right  to  complain  of  the  principal.  It  is  he,  him- 
self, and  not  the  principal,  who  trusts  the  agent  beyond  the  ex- 
pressed limits  of  the  power  ;  and,  therefore,  the  maxim  that  where 
one  of  two  innocent  persons  must  suffer,  he  who  reposed  confidence 
in  the  wrong-doer  must  bear  the  loss,  operates  in  favor  of  the  con- 
stituent, and  not  in  favor  of  the  seller  of  the  goods^  ^ 

This  clear  and  thoroughly  accurate  exposition  of  the  law,  which 
is  supported  literally  by  hundreds  of  well-decided  cases  in  Eng- 

^  This,  in  effect,  is  the  doctrine  of  Ar-  ^  Exactly  as  we  have  put  it,  supra,  in 

mour  V.  Michigan  Central  R.  R.  Co.,  65  showinf^  the  utter  absurdity  of  the  New 

N.  Y.  Ill,  and  is  even  more  extremely  York  "rule." 

stated  in  tiiat  utterly  foundationless  New  ^  Parsons  y.  Armor,  3  Pet.  413;  Stainer 

York    "rule"    upon    which    Ai-mour   v.  ■?;.  Tysen,  3  Hill  (N.  Y.),  279;  Attwood  v. 

Michigan  Central  R.  R.  Co.  is  made  to  Munnings,  7  B.  &  C.  278,  are  cited  by  the 

rest.  Massachusetts  Court. 


46  COMMENTARIES   ON   SALES.  [BOOK   III. 

land  and  in  this  conntry,  shows  clearly  the  fallacy  of  the  New 
York  agency  "  rule,"  and  the  unsoundness  of  Armour  v.  Michigan 
Central  R.  R.  Co./  and  the  two  or  three  cases  outside  of  New  York 
which  have  followed  it. 

The  same  principle  is  laid  down  in  a  later  Massachusetts  case, 
Stollewerck  v.  Thacher,^  Gray,  C.  J.,  delivering  the  unanimous 
judgment  of  the  court ;  thus :  "  The  numerous  cases  cited  at  the 
bar  differ  in  their  circumstances  rather  than  in  the  statement  of 
principles.  A  bill  of  lading,  even  when  in  terms  running  to  order 
or  assigns,  is  not  negotiable,  like  a  bill  of  exchange,  but  a  symbol 
or  representative  of  the  goods  themselves ;  and  the  rights  arising 
out  of  the  transfer  of  a  bill  of  lading  correspond,  not  to  those 
arising  out  of  the  indorsement  of  a  negotiable  promise  for  the 
payment  of  money,  but  to  those  arising  out  of  a  delivery  of  the 
property  itself  under  similar  circumstances.  If  the  bill  of  lading 
is  once  assigned  or  indorsed  generally  by  the  original  holder, 
upon  or  with  a  view  to  a  sale  of  the  property,  anj  subsequent 
transfer  thereof  to  a  bond  fide  purchaser  may  indeed  give  him  a 
good  title  as  against  the  original  owner.  But  so  long  as  the  bill 
of  lading  remains  in  the  hands  of  the  original  party,  or  of  an  agent 
intrusted  with  it  for  a  special  purpose,  and  not  authorized  to  sell 
or  pledge  the  goods,  a  person  who  gets  possession  of  it  without 
the  authority  of  the  owner,  although  with  the  assent  of  the  agent, 
acquires  no  title  as  against  the  principal.^  In  the  present  case. 
Baker,  being  a  special  agent  authorized  to  deliver  the  bill  of 
lading  only  upon  payment  of  the  bill  of  exchange  drawn  against 
the  goods  and  attached  to  the  bill  of  lading,  could  not  bind  his 
principals  by  a  delivery  made  without  such  payment.  To  hold 
otherwise  would  be  to  allow  a  person  intrusted  with  goods 
merely  for  the  purpose  of  collecting  the  price  and  then  delivering 
them,  to  sell  them  on  credit.  The  authority  of  Baker^  being 
special  and  limited,  could  not  be  enlarged  by  his  own  decla- 
rations." 

But  not  only  is  Armour  v.  Michigan  Central  R.  R.,*  and  the 
"  rule  "  on  which  that  case  is  founded,  opposed  to  sound  princi- 
ple, but,  as  we  have  shown,  that  case  is  opposed,  in  principle,  by 
the  unbroken  series  of  decisions  in  the  English  courts,  not  begin- 
ning, by  any  means,  with  Grant  v.  Norway,^  but  running  back  to 
the  very  earliest  decided  English  cases.  We  have  also  shown  that 
the  decisions  in  the  English  courts  have  been  relied  on  by  all  the 
leading  text-writers  on  the  subject,  not  only  in  England,  but  in 

1  65N.  Y.  111.  632;    Peace  v.   Gloahec,   L.  R.   1  P.  C. 

2  115  Mass.  224,  226.  219,  228. 

8  National  Bay  v.  Dearborn,  115  Mass.  *  65  N.  Y.  111. 

219  ;  Giirney  v.  Belireud,  3  £.  &  B.  622,  6  iq  c.  B.  625. 


PART   I.]  RAILWAYS.  47 

this  country  ;  not  one  of  whom  lias  questioned  the  soundness  of 
those  cases,  nor  disapproved  of  the  doctrine  which  they  have  es- 
tablished. We  now  proceed  to  show,  in  addition  to  what,  in  that 
direction,  we  liave  already  done,  that  the  whole  weight  of  judicial 
decision  in  this  country  sustains  the  doctrine  as  laid  down  by  the 
English  decisions  and  by  the  English  and  American  text-writers. 

The  leading  case  in  this  country  is  in  the  court  of  highest 
authority  in  the  United  States,  and  therefore  is  entitled  to  the 
greatest  credit  everywhere  as  to  what  is  the  law  in  this  country. 
Particularly  is  it  entitled  to  such  credit  in  this  country  itself. 

In  the  Schooner  Freeman  v.  Buckingham^  (a.  D.  1855),  the 
question  came  up  where  the  libellants  were  the  consignees  named 
in  the  bill  of  lading,  as  the  plaintiffs  were  (where  that  fact  was  so 
much  relied  on)  in  the  case  of  Armour  v.  Michigan  Central  R.  R. 
Co.2  TVe  state  the  case  in  the  Supreme  Court  of  the  United  States 
very  fully,  the  judgment  in  which  was  delivered  by  Judge  Curtis, 
as  the  unanimous  judgment  of  the  court.  The  appellees  filed  their 
bill  in  the  District  Court,  alleging  that  they  were  the  consignees 
named  in  two  bills  of  lading,  signed  by  the  master  of  the  schooner 
Freeman,  which  certified  that  certain  quantities  of  flour  had  been 
shipped  on  board  the  schooner  by  S.  Holmes  &  Co.,  at  Cleveland, 
in  the  State  of  Ohio,  to  be  carried  to  Buffalo,  in  the  State  of  New 
York,  and  there  safely  delivered  to  an  agent  named  in  the  bills  of 
lading,  to  be  by  him  forwarded  to  the  libellants,  in  the  city  of  New 
York.  The  libellants,  on  receipt  of  the  bills  of  lading,  and  on  the 
faith  of  them,  made  advances  to  the  alleged  shippers.  The  flour 
not  having  been  received,  the  vessel  was  libelled.  It  appeared 
that  the  flour  mentioned  in  the  bills  of  lading  as  having  been 
shipped  by  S.  Holmes  &,  Co.  never  was,  in  fact,  shipped,  nor,  so 
far  as  appeared,  had  the  alleged  shippers  any  such  flour ;  but 
they  induced  the  master  to  sign  the  bills  of  lading  by  fraud  and 
imposition,  intending  to  use  them,  as  they  did  use  them,  as  in- 
struments to  impose  on  the  libellants,  and  to  obtain  advances  on 
the  faith  of  them.  Holmes  was  the  special  owner,  or  the  owner 
pro  hac  vice,  of  the  vessel ;  the  claimant  was  the  general  owner. 

The  law  in  the  matter  is  admirably  stated  by  Judge  Curtis,  thus  : 
"  To  state  succinctly  the  legal  relations  of  these  parties,  it  may  be 
said  that  the  claimant  was  the  general  owner  of  the  vessel ;  that 
Holmes  was  owner  pro  hac  vice  ;  that  the  libellants  are  holders  of 
the  bills  of  lading,  for  a  valuable  consideration,  parted  with,  in 
good  faith,  on  the  credit  of  the  bills  of  lading ;  but  that  the  bills 
of  lading  themselves  are  not  real  contracts  of  affreightment,  but 
only  false  pretences  of  such  contracts  ;  and  the  question  is,  whether 

1  18  How.  182.  2  65  n.  Y.  111. 


48  COMMENTARIES   ON   SALES.  [BOOK   III. 

they  can  operate,  under  the  maritime  law,  to  create  a  lien,  binding 
the  interest  of  the  claimant  in  the  vessel.  Under  the  maritime 
law  of  the  United  States  the  vessel  is  bound  to  the  cargo,  and  the 
cargo  to  the  vessel,  for  the  performance  of  a  contract  of  affreight- 
ment ;  but  the  law  creates  no  lien  on  a  vessel  as  a  security  for  the 
performance  of  a  contract  to  transport  cargo,  until  some  lawful 
contract  of  affreightment  is  made,  and  a  cargo  shipped  under  it. 
In  this  case  there  was  no  cargo  to  which  the  ship  could  be  bound, 
and  there  was  no  contract  made  for  the  performance  of  which  the 
ship  could  stand  as  security.  But  the  real  question  is,  whether, 
in  favor  of  a  bond  fide  holder  of  such  bills  of  lading  procured  from 
the  master  by  the  fraud  of  an  owner  pro  hac  vice,  the  general 
owner  is  estopped  to  show  the  truth,  as  undoubtedly  the  special 
owner  would  be.  This  question  does  not  appear  to  have  been 
made  in  the  court  below,  the  distinction  between  the  special  and 
general  owner  not  having  been  insisted  on.  So  large  a  part  of 
the  carrying  trade  of  this  country  is  carried  on  in  vessels  of 
which  the  masters,  or  other  persons,  are  owners  joro  hac  vice,  and 
the  practice  of  taking  security  by  way  of  mortgage  of  vessels  has 
become  so  common,  while,  at  the  same  time,  the  confidence  placed 
in  bills  of  lading  as  the  representatives  of  property  is  so  great  and 
so  important  to  commerce,  that  the  relative  rights  of  the  holders 
of  such  documents,  and  of  the  general  owners  and  mortgagees  of 
vessels,  which  are  involved  in  this  case,  are  subjects  of  magnitude  ; 
and  the  case  has  received  the  attentive  consideration  of  the  court. 
The  master  who  signed  them  was  not  his  agent,  and  they  created 
no  contract  between  him  and  the  consignor  or  consignee,  or  any 
third  person  who  might  become  their  holder.^  And  it  has  been 
laid  down  by  the  High  Court  of  Admiralty  in  England ^  that  'in 
all  causes  of  action  which  may  arise  during  the  ownership  of  the 
persons  whose  ship  is  proceeded  against,  I  apprehend  that  no  suit 
could  ever  be  maintained  against  a  ship  where  the  owners  were 
not  themselves  personally  liable,  or  where  their  personal  liability 
had  not  been  given  up,  as  in  bottomry  bonds,  by  taking  a  lien  on 
the  vessel.  The  liahility  of  the  ship,  and  the  responsibility  of  the 
owners  in  such  cases,  are  convertible  terms  ;  the  ship  is  not  liable  if 
the  owners  are  not  responsible  ;  and,  vice  versa,  no  responsibility 
can  attach  on  the  owners  if  the  ship  is  exempt  and  not  liable  to  be 
proceeded  against.''  ^  Though  this  language  is  broad  enough  to 
cover  all  cases,  whether  of  contract  or  tort,  it  should  be  observed 
that  the  case  before  the  court  was  one  of  wilful  tort  by  the  master, 

1  Abbott   on    Shipping,    42,    57,    and  ^  gge  also  The  Bold  Buccleugh,  2  Eng. 
notes.                                                                 L.  &  Eq.  537;   s.  c.  7  Moo.  P.'C.  267;""3 

2  The  Druid,  1  W.  Rob.  399.  W.  Rob.  220. 


PART  I.]  RAILWAYS.  49 

and  that  there  was  no  occasion  to  advert  to  any  distinction  between 
a  general  and  special  owner,  or  to  consider  whether  the  interest  of 
the  former  in  the  vessel  could  be  bound  by  the  act  of  the  latter,  or 
of  the  master  appointed  by  him.  We  are  of  opinion  that,  under  our 
admiralty  law,  contracts  of  affreightment,  entered  into  with  the  mas- 
ter, in  good  faith,  and  within  the  scope  of  his  apparent  authority 
as  master,  hind  the  vessel  to  the  merchandise  for  the  performance  of 
such  contracts,  wholly  irrespective  of  the  ownershijy  of  the  vessel, 
and  whether  the  master  be  the  agent  of  the  general  or  the  special 
oivner.  In  the  case  of  the  Phoebe,^  Judge  Ware  has  traced  the 
power  of  the  master  to  bind  the  vessel  by  contracts  of  affreight- 
ment to  the  maritime  usages  of  the  Middle  Ages.  So  far  as  re- 
spects such  contracts  made  by  the  master  in  the  usual  course  of 
the  employment  of  the  vessel,  and  entered  into  with  a  party  who 
has  no  notice  of  any  restriction  upon  that  apparent  authority, 
those  maritime  usages  may  safely  be  considered  to  make  part  of 
our  law,  though  we  should  hesitate  to  declare  that  their  effect  has 
not  been  modified  by  our  own  commercial  law,  which  has  recog- 
nized interests  and  rights  unknown  to  the  commercial  world  when 
those  usages  obtained.  And  we  desire  to  be  understood  as  not 
intending  to  say  that  all  contracts  made  by  a  master  within  the 
usual  scope  of  his  employment,  which,  by  the  ancient  maritime 
law,  would  have  created  liens  on  the  vessels,  will  now  do  so,  in 
such  manner  as  to  bind  the  interests  in  the  vessel  of  parties 
whom  he  does  not  represent  as  agent ;  for  the  ground  on  which 
we  rest  the  authority  of  a  master,  who  is  either  special  owner  or 
agent  of  the  special  owner,  is,  that  when  the  general  owner  in- 
trusts the  special  owner  with  the  entire  control  and  employment 
of  the  ship,  it  is  a  just  and  reasonable  implication  of  law  that  the 
general  owner  assents  to  the  creation  of  liens  binding  upon  his 
interest  in  the  vessel,  as  security  for  the  performance  of  contracts 
of  affreightment  made  in  the  course  of  the  lawful  employment  of 
the  vessel.  The  general  owner  must  be  taken  to  know  that  the 
purpose  for  which  the  vessel  is  hired,  when  not  employed  to  carry 
cargo  belonging  to  the  hirer,  is  to  carry  cargo  of  third  persons ; 
and  that  bills  of  lading,  or  charter-parties,  must,  in  the  invariable 
regular  course  of  that  business,  be  made,  for  the  performance  of 
which  the  law  confers  a  lien  on  the  vessel.  He  should  be  con- 
sidered as  contemplating  and  consenting  that  what  is  uniformly 
done  may  be  done  effectually ;  and  he  should  not  be  allowed  to 
say  that  he  did  not  expect,  or  agree,  that  third  persons,  who  have 
shipped  merchandise  and  taken  bills  of  lading  therefor,  would 
thereby  acquire  a  lien  on  the  vessel  which  he  has  placed  under 

1  1  Ware,  263. 
VOL.   II.  4 


50  COMMENTARIES   ON   SALES.  [bOOK   III. 

the  control  of  another,  for  the  very  purpose  of  enabling  him  to 
make  such  contracts  to  which  the  law  attaches  the  lien."  ^ 

And  then  follows  this  admirable  exposition  of  the  law,  in  oppo- 
sition to  the  principles  of  the  New  York  "  rule  "  as  to  agency,  and 
to  the  express  decision  thereunder  in  Armour  v.  Michigan  Central 
R.  R.  Co. :  2  _ 

"  But  if  this  be  the  ground  upon  which  the  interest  of  the  gen- 
eral owner  is  subjected  to  liens,  by  the  act  of  those  who  are  not 
so  his  agents  as  to  bind  him  personally,  this  ground  wholly  fails 
in  the  case  at  bar.  There  can  be  no  implication  that  the  general 
owner  consented  that  false  pretences  of  contract,  having  the  sem- 
blance of  bills  of  lading,  should  be  created  as  instruments  of 
fraud ;  or  that,  if  so  created,  they  should  in  any  manner  affect 
him  or  his  property.  They  do  not  grow  out  of  any  employment 
of  the  vessel ;  and  there  is  as  little  privity  or  connection  between 
him  or  his  vessel  and  such  simulated  bills  of  lading,  as  there 
would  be  between  him  and  any  other  fraud  or  forgery  which  the 
master  or  special  owner  might  commit.  Nor  can  the  general 
owner  be  estopped  from  showing  the  real  character  of  the  transac- 
tion, by  the  fact  that  the  libellants  advanced  money  on  the  faith 
of  the  bills  of  lading ;  because  this  change  in  the  libellant's  con- 
dition was  not  induced  by  the  act  of  the  claimant  or  of  any  one 
acting  within  the  scope  of  an  authority  which  the  claimant  had 
conferred.  Even  if  the  master  had  been  appointed  by  the  claim- 
ant, a  wilful  fraud  committed  by  him  on  a  third  person,  by  sign- 
ing false  bills  of  lading,  would  not  be  within  his  agency.  If  the 
signer  of  a  bill  of  lading  was  not  the  master  of  the  vessel,  no  one 
would  suppose  the  vessel  bound ;  and  the  reason  is  because  the 
bill  is  signed  by  one  not  in  privity  with  the  owner.  But  the 
same  reason  applies  to  a  signature  made  hy  a  master  out  of  the 
course  of  his  employment.  The  taker  assumes  the  risk  not  only  of 
the  genuineness  of  the  signature.,  and  of  the  fact  that  the  signer  tvas 
master  of  the  vessel.,  hut  also  of  the  apparent  authority  of  the  mas- 
ter to  issue  the  hill  of  lading.  We  say  the  apparent  authority,  be- 
cause any  secret  instructions  by  the  owner  inconsistent  with  the 
authority  with  which  the  master  appears  to  be  clothed,  would  not 
affect  third  persons.  But  the  master  of  a  vessel  has  no  more  an 
apparent  unlimited  authority  to  sign  hills  of  lading  than  he  has  to 
sign  hills  of  sale  of  the  ship.  He  has  an  apparent  authority,  if  the 
ship  he  a  general  one,  to  sign  bills  of  lading  for  cargo  actually 
shipped  ;  and  he  has  also  authority  to  sign  a  bill  of  sale  of  the  ship, 
when,  in  case  of  disaster,  his  power  of  sale  arises.     But  the  author- 

1  See  The  Cassius,  2  Story,  93  ;  Webb         «  65  N.  Y.  111. 
V.  Pierce,  1  Curt.  107. 


PART  I.j  RAILWAYS.  51 

ity,  in  each  case,  arises  out  of,  and  depends  upon,  a  particular  state 
of  facts.  It  is  not  an  unlimited  authority/  in  the  one  case  more  than 
in  the  other ;  and  his  act,  in  either  case,  does  not  bind  the  owner, 
even  in  favor  of  an  innocent  purchaser,  if  the  facts  upon  which  his 
power  depended  did  not  exist ;  and  it  is  incumbent  upon  those  who 
are  about  to  change  their  conditio?!,  upon  the  faith  of  his  authority, 
to  ascertain  the  existence  of  all  the  facts  upon  which  his  authority 
depends." 

And  this  clear,  able,  and  accurate  exposition  of  the  law  had 
been  made  in  the  most  authoritative  court  in  this  country  —  the 
Supreme  Court  of  the  United  States  —  before  Armour  v.  Michigan 
Central  R.  R.  Co.,^  and  the  two  or  three  other  cases  outside  of 
New  York  following  it,  were  decided  ;  and  jet  these  cases  were 
decided  as  they  were  decided  !  To  say  nothing  of  the  long 
and  unbroken  series  of  English  cases,  the  absolute  unanimity 
of  all  the  English,  and  virtually  all  the  American  writers,  on 
the  subject,  one  would  have  thought  that  so  admirable  and  truth- 
ful an  exposition  of  the  law  as  is  contained  in  The  Schooner 
Freeman  v.  Buckingham,^  would  have  prevented  such  a  result. 
And  the  wonder  still  might  be  how  such  a  thing  could  have 
happened  if  it  were  not  for  the  still  greater  wonder  that  a 
"  rule,"  as  now  existing  and  acted  on,  absolutely  monstrous  in 
its  absurdity,  on  which  those  cases  depend,  had  been  formulated 
in  the  New  York  Court  of  Appeals,  and  had  been  acted  upon  over 
and  over  again  with  as  positive  an  assumption  of  its  correctness 
as  though  it  were  as  undoubted  as  a  conclusively  demonstrated 
mathematical  proposition,  and  yet  the  absurdity  of  the  so-called 
rule  has  escaped  exposure  all  these  years  until  now  ! 

The  same  principle  as  to  the  limited  power  of  the  master  to  bind 
the  ship  and  owners  by  a  false  bill  of  lading  which  governed  The 
Schooner  Freeman  v.  Buckingham,^  was  acted  upon  in  the  same 
court,  unanimously,  nearly  three-quarters  of  a  century  ago,  in 
Gracie  v.  Palmer,*  when  such  men  as  Chief  Justice  Marshall  and 
Judge  Story  were  members  of  the  court.  So,  over  fifty  years  ago, 
in  tbe  United  States  District  Court  for  Maine,  it  was  held  in  The 
Phoebe,^  that  if  the  shipper  proceeds  against  the  vessel  for  the 
fault  of  the  master,  in  not  executing  a  contract  entered  into  by  a 
bill  of  lading,  the  owner  may  contradict  tlie  bill  of  lading  by  parol 
testimony,  he  being  a  stranger  to  the  contract  and  intervening  as 
a  third  person  for  his  own  interest. 

In  Vandewater  v.  Mills,^  where  the  judgment  is  again  unani- 
mous, the  United  States  Supreme  Court  again  lays  down  the  law, 

1  65  N.  Y.  111.  *  8  Wheat.  605. 

2  18  How.  182.  6  1  Ware,  263. 

8  Ibid.  «  19  How.  82,  90. 


52  COMMENTARIES   ON   SALES.  [BOOK   III. 

thus:  "  The  duty  of  the  vessel,  to  the  performance  of  which  the 
law  binds  her  by  hypothecation,  is  to  deliver  the  cargo  at  the  time 
stipulated  in  the  bill  of  lading  or  charter-party,  without  injury  or 
deterioration.  If  the  cargo  he  not  placed  on  hoard,  it  is  not  hound 
to  the  vessel,  and  the  vessel  cannot  he  in  default  for  the  non-deliv- 
ery, iti  good  order,  of  goods  never  received  on  hoard.^^ 

The  same  question  came  up  in  this  country,  in  admiralty,  in  the 
case  of  Martell  v.  The  Schooner  Rose  and  her  Master '  (a.  d.  1865). 
The  libel  was  filed  to  recover  damages  for  the  non-performance  of  a 
bill  of  lading.  The  bill  of  lading  was  executed  by  Rose,  at  Alex- 
andria, Va.,  by  which  he  acknowledged  the  shipment  on  the  ves- 
sel by  H.,  of  3000  bushels  of  wheat,  and  1000  bushels  of  corn,  and 
which  was  to  be  delivered  at  New  York  to  the  shipper  or  his  as- 
signs. The  libellants  alleged  that  they  advanced  on  this  bill  of 
lading  the  sum  of  $4200,  and  it  was  assigned  to  them,  and  that 
on  the  arrival  of  the  vessel  at  New  York,  they  demanded  the 
wheat  and  corn,  but  the  vessel  failed  to  deliver  more  than  150 
bushels  of  wheat  and  1000  bushels  of  corn ;  and  they  demanded 
judgment  for  the  value  of  the  cargo  not  delivered,  against  the  ves- 
sel and  the  master,  whom  they  alleged  to  be  one  of  the  owners. 
The  other  owners  defended  the  action,  setting  up  and  proving  that 
the  bill  of  lading  was  false  and  fraudulent,  and  that  the  wheat 
mentioned  in  it  was  never  shipped  on  board  the  vessel,  except  the 
150  bushels  which  was  delivered.  The  court  held  that  as  the 
master  had  executed  the  bill  of  lading  with  knowledge  that  the 
wheat  was  not  on  board  at  the  time,  the  bill  of  lading  was  nuga- 
tory and  fraudulent,  as  to  the  vessel  and  all  the  co-owners  except 
the  master  and  his  ownership.  The  court,  in  so  holding,  said : 
"  A  cardinal  restriction  which  applies  to  this  case,  is  that  a  mas- 
ter cannot  subject  a  ship  in  rem,  much  less  his  co-owners,  to  a 
responsibility  for  safe  carriage  or  delivery  of  cargo  not  actually 
laden  on  board  of  it  for  transportation  in  the  lawful  employment 
of  the  vessel.  This  principle  is  too  firmly  rooted  in  the  doctrines  of 
commercial  jurisprudence  to  he  now  suhject  to  question  in  this  coun- 
try or  in  England." 

The  same  doctrine  was  sustained  in  the  United  States  Circuit 
Court  for  the  Southern  District  of  New  York,  in  the  case  of  The 
Loon.2  By  the  fraud  of  the  shipper,  the  master,  having  no 
knowledge  of  the  quantity  of  cargo  on  board  the  vessel,  was 
induced  to  sign  bills  of  lading  for  lumber,  for  about  double 
the  quantity  that  was  shipped  ;  the  libellants  being  named  in  the 
bills  of  lading  as  the  consignees.  With  these  fraudulent  bills  of 
lading,  the  shipper  obtained  from  the  consignees  several  thou- 

1  1  Int.  Rev.  Rec.  125.  2  7  Blatchf.  244. 


PART   I.]  RAILWAYS.  53 

sands  of  dollars  in  faith  of  the  bills  of  lading.  On  the  arrival  of 
the  vessel  at  her  destination  at  New  York,  it  was  discovered  that 
only  about  half  the  quantity  of  lumber  was  shipped  that  was  men- 
tioned in  the  bills  of  lading.  The  consignees  having  filed  their 
libel  against  the  vessel  to  charge  her  with  the  deficiency,  the  court 
held  that  the  master  of  the  vessel  had  no  authority  from  the 
owner,  either  express  or  implied,  to  sign  bills  of  lading  for  cargo 
not  shipped ;  that  the  master  has  no  power,  by  signing  bills  of 
lading  for  goods  not  on  board,  to  charge  the  owner,  and  the  result 
followed,  that  if  the  owner  was  not  charged,  neither  was  the  ship, 
and,  therefore,  that  no  lien  existed  to  be  enforced  in  admiralty. 

The  same  doctrine  was  also  held  in  tbe  United  States  District 
Court,  in  The  L.  J.  Farwell.^  In  so  deciding,  the  court  said: 
"  The  act  of  the  master  in  signing  and  delivering  the  bills  of  lad- 
ing in  question,  when  there  was  no  wheat  on  board  the  vessel, 
was  unauthorized  and  irregular.  A  bill  of  lading  is  a  contract 
by  which  the  master  engages  to  carry  and  deliver  goods  to  the 
consignee,  or  to  the  order  of  the  shipper.  It  acknowledges  the 
goods  to  be  on  board,  and  they  should  be  on  board  before  the  bill 
is  signed.  If,  therefore,  a  master  signs  bills  of  lading  before  the 
goods  are  on  board,  or  delivered  to  some  one  Authorized  to  receive 
them,  and  they  are  never  shipped,  as  the  act  of  the  master  is  not 
within  the  scope  of  his  authority,  the  owners  of  the  vessel  are 
not  estopped  from  showing  the  facts  in  a  suit  brought  against 
them  for  non-delivery,  by  a  bond  fide  indorsee  of  the  bill  of  lading. 
In  such  case  the  owners  are  not  liable."  ^ 

The  doctrine  was  again  affirmed  by  the  Supreme  Court  of  the 
United  States  in  The  Lady  Franklin,^  where  the  court  did  not  con- 
sider the  question  even  arguable.  Judge  Davis,  in  delivering  the 
unanimous  judgment  of  the  court,  said  :  "  In  this  case  tlie  bill  of 
lading  acknowledges  the  receipt  of  so  much  flour  and  is  primd 
facie  evidence  of  the  fact.  It  is,  however,  not  conclusive  on  the 
point,  but  may  be  contradicted  by  oral  testimony.  The  doctrine 
that  the  obligation  between  ship  and  cargo  is  mutual  and  recip- 
rocal, and  does  not  attach  until  the  cargo  is  on  board,  or  in  the 
custody  of  a  master,  has  been  so  often  discussed  and  so  long  set- 
tled^ that  it  would  be  useless  labor  to  restate  it,  or  the  principles 
which  lie  at  its  foundation.  The  case  of  the  Schooner  Freeman 
V.  Buckingham,*  decided  by  this  court,  is  decisive  of  this  case.  It 
is  true  the  bill  of  lading  there  was  obtained  fraudulently,  while 
here  it  was  given  by  mistake ;  but  the  principle  is  the  same,  and 

1  8  Biss.  61,  64.  1    Biss.    193  ;    and   Sutton  v.   Kettell,   1 

2  To   t}K'  same  effect  are  The   J.  W.     Sprar,me,  309. 
Brown,   1  Biss.   76  ;    The  Joseph   Grant,  »  8  Wall.  32.^.. 

*  18  How.  192. 


64  COMMENTAKIES   ON  SALES.  [BOOK  III. 

tliG  court  held  in  that  case  there  could  be  no  lien,  notwithstand- 
ing the  bill  of  lading.  The  court  say, '  There  was  no  cargo  to 
which  the  ship  could  be  bound,  and  there  was  no  contract  for  the 
performance  of  which  the  ship  could  stand  as  security.'  " 

This  was  re-affirmed  in  The  Delaware ,  ^  again  by  the  unanimous 
judgment  of  the  court.  It  is  there  laid  down  that  "  Bills  of  lad- 
ing, when  signed  by  the  master,  duly  executed  in  the  usual  course 
of  business,  bind  the  owners  of  the  vessel  if  the  goods  were  laden 
on  board  or  were  actually  delivered  into  the  custody  of  the  master, 
but  it  is  well-settled  law  that  the  owners  are  not  liable,  if  the 
party  to  whom  the  bill  of  lading  was  given  had  no  goods,  or  the 
goods  described  in  the  bill  of  lading  were  never  put  on  board  or 
delivered  into  the  custody  of  the  carrier  or  his  agent." 

In  Pollard  v.  Vinton  ^  (a.  d.  1881),  the  decision  in  The  Schooner 
Freeman  v.  Buckingham  ^  was  again  expressly  affirmed  by  the 
Supreme  Court  of  the  United  States.  The  head-note  of  the  case 
by  Miller,  J.,^  who  delivered  the  unanimous  judgment  of  the 
court,  is,  — 

"  Neither  the  master  of  a  vessel  nor  the  shipping  agents  of 
steamboats  on  the  rivers  of  the  interior,  at  points  where  they  re- 
ceive and  deliver  cargo,  have  authority  to  bind  the  vessel  or  its 
owners  by  giving  a  bill  of  lading  for  goods  or  cargo  not  received 
for  shipment.  Such  a  bill  of  lading,  being  outside  of  the  power 
conferred  by  the  agent's  authority,  is  void  in  the  hands  of  a  per- 
son, who  may  have  afterwards,  in  good  faith,  taken  it  and  ad- 
vanced money  on  it." 

In  reaching  this  conclusion,  the  law  is  ably  and  conclusively 
discussed  by  Miller,  J.,  and  the  limited  character  and  powers  of 
the  agent  in  such  cases  well  shown.  In  dealing  with  the  New 
York  cases  on  which  Armour  v.  Michigan  Central  R.  R.  Co.^  rests, 
the  United  States  Supreme  Court  thus  distinguishes  them :  — 

"  Whatever  may  be  the  true  rule  which  characterizes  actions  of 
oncers  of  a  corporation  ivho  are  placed  in  control  as  the  governing 
force  of  the  corporation,  which  actions  are  at  once  a  fraud  on  the 
corporation  and  the  parties  with  whom  they  deal,  and  how  far 
courts  may  yet  decide  to  hold  the  corporations  liable  for  such  ex- 
ercise of  power  by  their  officers,  they  can  have  no  controlling  in- 
fluence over  cases  like  the  present.  In  the  one  before  us  it  is 
a  question  of  7nere  agency,  and  depends  solely  on  the  power  con- 
fided to  the  agent.  In  the  other  case  the  officer  is  the  corporation 
for  many  purposes.     Certainly  a  corporation  can  be  charged  with 

1  U  Wall.  579,  602.  *  See  105  U.  S.,  xxvi.  998. 

2  105  U.  S.  7.  -       5  65N.  Y.  111. 
8  18  How.  182. 


PART   I.]  RAILWAYS.  55 

no  intelligent  action,  or  with  entertaining  any  purpose,  or  com- 
mitting any  fraud,  except  as  this  intelligence,  this  purpose,  this 
fraud,  is  evidenced  by  the  actions  of  its  official.  And  while  it 
may  be  conceded  that  for  many  purposes  they  are  agents,  and  are 
to  be  treated  as  the  agents  of  the  corporation,  or  of  the"  corpora- 
tors, it  is  also  true  that  for  some  purposes  they  are  the  corpora- 
tion, and  their  acts  as  such  officers  are  its  acts." 

In  the  same  year  (a.  d.  1881),  the  question  came  up  in  the 
Circuit  Court  for  the  Western  District  of  Tennessee  in  Robinson 
V.  Memphis  &  Charleston  R.  R.  Co.,^  of  which  the  following  is 
the  head-note :  — 

"  The  freight  agent  of  a  railroad  company,  by  the  procurement 
of  a  cotton  buyer,  signed  a  bill  of  lading  for  thirty-two  bales  of 
cotton  which  were  not  in  hand,  and  were  never  delivered  to  the 
railroad  company  or  any  agent  for  it.  The  plaintiffs  paid  a  draft 
for  the  price  of  the  cotton  on  the  faith  of  the  bill  of  lading 
attached  to  it  and  indorsed  to  them,  and,  never  having  received 
the  cotton,  sued  the  railway  company  for  its  non-delivery.  Held, 
that  the  carrier  was  not  estopped  to  show  that  no  cotton  was  in 
fact  delivered  for  transportation  ;  that  the  agent  had  no  authority, 
real  or  apparent,  to  sign  a  receipt  or  bill  of  lading  until  actual 
delivery  of  the  cotton,  and  the  company  was  not  liable."  ^ 

1  9  Fed.  Rep.  129.  principal  is  estopped  where  the  agent  acts 

2  The  whole  judgment  is  a  most  within  the  apparent  scope  of  his  author- 
valuable  one.  We  make  the  following  ity,  and  this  may  be  conceded  here.  But 
extracts  from  it:  "The  most  plausible  this  railroad  company  did  not  authorize 
argument  in  favor  of  the  plaintiil's  is  that  this  agent  to  sign  false  or  fictitious  bills 
the  carrier,  having  authorized  an  agent  to  of  lading.  It  said  to  the  community  : 
sign  bills  of  lading,  is  estopped  to  deny  We  are  engaged  in  carrying  merchandise 
the  receipt  of  the  cotton  when  the  bill  of  to  New  York  or  elsewhere  over  our  lines, 
lading  has  passed  into  the  hands  of  an  and  we  place  this  man  here  to  receive 
innocent  party,  and  should  be  held  pre-  such  as  you  have  for  trans})ortation,  and 
cisely  as  if  it  had  received  the  cotton  and  authorize  him  to  give  you  a  receipt  for  it, 
failed  to  deliver  it  to  the  plaintiti's.  I  and  a  written  contract  stipulating  for  its 
doubt  whether  a  factor  and  his  principal  transportation.  They  did  no  more  than 
occupy  such  a  relation  to  each  other  in  this,  and  no  more  can  be  fairly  inferred 
their  dealings  as  will  justify  either  in  from  what  they  did.  It  was  not  within 
saying  of  their  common  or  mutual  carrier  the  api)arent  scope  of  this  authority  to 
that  he  is  the  carrier  for  the  other,  so  as  sign  and  issue  documents  for  the  mere 
to  take  the  case  out  of  the  category  of  one  purpose  of  having  them  attached  to  drafts, 
between  the  original  parties,  where  there  or  otherwise  pledged  as  collateral  secur- 
is  not  the  least  doubt  that  the  carrier  is  ity,  irresj>ective  of  the  actual  jiossession 
not  estopped  to  explain  his  receipt  by  of  goods  to  be  carried.  It  may  well  be 
showing  it  to  be  a  false  one,  or  only  par-  doubted  whether  the  directory  itself,  or 
tially  a  true  one.  The  Lady  Franklin,  8  the  body  of  the  stockholders  even,  could 
Wall.  325.  But,  passing  that  question,  authorize  the  company  to  issue  bills  of 
there  can  be  no  doubt  that  one  should  not  lading  without  the  merchandise  in  hand 
be  estopped  by  the  conduct  of  another  un-  to  be  used  for  any  purpose.  The  charter 
less  that  other  is  acting  for  him  in  the  does  not  authorize  such  a  business,  and 
premises.  Big.  Estop.  429,  442  ;  Whart.  the  company  is  not  engaged  in  it.  Tliere- 
Ag.  127-139;  13  Am.  Law  Reg.  N.  s.  Q^)7;  fore  it  seems  to  me  plain  that  the  agent's 
Planters'  Bank  v.  Merritt,  7  Heisk.  177;  aiithority,  actual  and  ajiparent,  was  lim- 
Merchants'  liaiik  v.  State  Bank,  10  Wall,  ited  to  issuing  bills  of  lading  on  goods  in 
at  p.  675.     It  is  sometimes  said  that  the  hand,  and  all  else  was  outside  the  agency. 


66 


COMMENTARIES   ON  SALES. 


[book   III. 


In  a  still  later  case  (Dec.  31,  1883),  the  same  principle  was 
acted  upon  again,  in  the  case  of  the  Querini  Stamphalia,^  in  the 
District  Court  for  the  Southern  District  of  New  York. 

In  addition  to  all  of  these  cases  decided  in  the  Federal  courts 
we  find  quite  a  number  of  cases  where  the  law  is  similarly  cor- 
rectly decided  in  the  courts  in  different  States  of  the  Union. 

We  have  already  directed  attention  to  cases  in  New  York  itself, 
prior  to  the  decision  of  Armour  v.  Michigan  Central  R.  R.  Co.^ 
In  Pennsylvania  too,  in  Warden  v.  Greer  ^  (a.  d.  1837),  in  an 


unless  we  are  to  treat  these  documents  as 
against  the  cairier,  just  as  if  they  were 
as  negotiable  in  this  respect  as  bills  and 
notes,  which  we  have  seen  we  are  not  au- 
thorized to  do.  Indeed,  a  bill  of  lading  is 
not  necessary  at  all,  and  the  carrier's  lia- 
bility is  fixed  by  delivery  of  the  goods 
without  it.  Fox  v.  Hall,  36  Conn.  558  ; 
Shelton  v.  Merchants'  Co.,  4  J.  &  S. 
(N.  Y.)  527  ;  Hutch.  Car.  §§  118,  729. 
A  general  railroad  agent  may  sometimes 
bind  the  company  within  the  general 
scope  of  its  own  powers,  but  not  a  mere 
station  agent,  freight  receiver,  or  cour 
ductor.  Atlantic,  &c.  R.  R.  v.  Reisner, 
18  Kan.  458  ;  Whart.  Ag.  §  222  et  seq. ; 
Cox  V.  Midland  Ry.  Co.,  3  Ex.  268." 
Again  (at  p.  138) :  "  The  master  of  a  ship 
has  a  more  comprehensive  agency  than  a 
station  or  freight  agent  of  a  railroad,  and 
he  has  no  authority,  actual  or  ayjparent,  to 
issue  bills  of  lading  until  the  goods  are 
delivered  to  him  or  the  ship,  and  it  took 
a  statute  in  England  to  make  him  even 
personally  liable  to  one  injured  by  such 
bill  of  lading.  3  Kent  (12th  ed.),  207, 
and  note;  1  Pars.  ilar.  Law,  135,  137; 
1  Pars.  Ship,  k  Ad.  187,  190  ;  2  Dan. 
Neg.  Insts.  §§  1729,  1733;  1  Chit. 
Con.  (11th  ed.)7;  Hutch.  Car.  §§  122, 
123,  124;  2  Jac.  Fish.  Dig.  1654,  and 
cases  cited  by  these  authorities  ;  18  &  19 
Vic.  c.  Ill,  §  3;  Jessel  v.  Bath,  L.  R.  2 
Ex.  267;  Brown  v.  Powell  Col.  Co.,  L.  R. 
10  C.  P.  562 ;  Grant  v.  Norway,  10  C.  B. 
665.  These  authorities  establish  beyond 
dispute  that  where  a  master  signs  a  bill  of 
lading  for  goods  not  received,  or  for  moi'e 
than  are  received,  he  acts  beyond  his  au- 
thority, and  the  owner  is  not  liable  either 
to  the  original  shipper  or  any  assignee  of 
the  bill  of  lading,  whether  he  makes  ad- 
vances on  the  faith  of  it  or  gives  value  for 
it  or  not ;  neither  is  the  owner  estopped  to 
show  the  facts  as  they  really  exist.  Some 
courts  have  reluctantly  yielded  to  this 
principle,  and  some  have  sought  to  re- 
strict or  qualify  it  in  the  supposed  in- 
terest of  commercial  dealing ;  but  in 
England,  although  a  statute  makes  the 
individual  signing  the  bill  of  lading  li- 


able, it  goes  no  further,  and  the  doctrine 
of  Grant  v.  Norway,  10  C.  B.  665,  has 
withstood  the  assaults  upon  it,  and  is  es- 
tablished law.  It  has  been  approved  by 
the  Supreme  Court  of  the  United  States, 
and  directly  or  in  principle  by  other 
Federal  courts.  Schooner  Freeman  v, 
Buckingham,  18  How.  182  ;  Vandewater 
V.  Mills,  19  How.  90;  The  Lady  Franklin, 
8  Wall.  325  ;  The  Keokuk,  9  Wall.  517, 
519;  Bucklev  v.  Naumkeag  Co.,  24  How. 
386,  392 ;  The  Loon,  7  Blatchf.  244  ;  The 
Grant,  1  Biss.  193  ;  The  May  Flower,  3 
Ware,  300  ;  The  Edwin,  1  Sprague,  477; 
The  Leonidas,  1  01c.  12  ;  The  Marengo,  6 
McLean,  487 ;  McCreadv  v.  Holmes,  6 
Am.  Law  Reg.  229  ;  The"  Brown,  1  Biss. 
76  ;  The  Wellington,  lb.  279  ;  The 
Tuskor,  1  Sprague,  71;  Sutton  v.  Kettle, 
lb.  309  ;  Blag  v.  Insurance  Co.,  3  Wash. 
5  ;  Dixon  v.  Railroad  Co.,  4  Biss.  137, 
147,  n. ;  Bradstreet  v.  Heran,  2  Blatchf. 
116;  Relyea  v.  Rolling  Mill  Co.,  42  Conn. 
579.  .  .  .  And  in  respect  to  the  intima- 
tions that  there  is  a  ditferent  rule  between 
an  assignee  who  has  in  good  faith  ad- 
vanced money  on  the  faith  of  the  bill  of 
lading  and  the  original  parties,  I  can  only 
say  that,  in  my  judgment,  no  such  dis- 
tinction exists.  These  intimations  are  all 
founded  on  doubts  and  conflicts  that  were 
set  at  rest  by  Grant  v.  Norway,  which  is 
a  direct  authority  against  them.  The 
Schooner  Freeman  case,  afiproving  that 
of  Grant  v.  Norway,  was  itself  a  case  of 
advancement  of  money  on  the  faith  of  a 
false  bill  of  lading,  and  must  bind  us  here, 
both  in  its  principle  and  its  precedent. 
Besides,  I  have  no  doubt,  for  the  reasons 
I  have  stated,  that  it  is  the  correct  prin- 
ciple, and  it  is  a  mistake  to  suppose  that 
the  interests  of  commerce  require  that  the 
common  carriers  of  the  country  shall  be- 
come the  insurers  or  guarantors  of  mer- 
chants who  choose  to  make,  in  their 
dealings  with  each  other,  a  convenience 
of  their  bills  of  lading." 

1  19  Fed.  Rep.  123,  125. 

2  65  N.  Y.  111. 

3  6  Watts,  424. 


PART   I.]  RAILWAYS.  57 

action  against  a  common  carrier  by  a  consignee  for  not  delivering 
goods  in  good  order,  it  was  held  that  the  owners  would  not  be 
permitted  to  give  evidence  to  contradict  the  bill  of  lading  signed 
by  the  master,  unless  it  be  to  prove  that  a  fraud  or  imposition  was 
practised  on  the  master,  or  that  there  had  been  a  mistake  of  the 
consignor  and  master. 

In  Massachusetts,  in  Sears  v.  Wingate,^  the  law  is  well  laid 
down  by  Hoar,  J.,  in  delivering  the  unanimous  judgment  of  the 
court,  as  covered  by  the  following  propositions  :  First.  The  receipt 
in  the  bill  of  lading  is  open  to  explanation  between  the  master 
and  the  shipper  of  the  goods.  Secondly.  The  master  is  estopped, 
as  against  a  consignee  who  is  not  a  party  to  the  contract,  and  as 
against  an  assignee  of  the  bill  of  lading,  when  either  has  taken  it 
for  a  valuable  consideration  upon  the  faith  of  the  acknowledg- 
ments which  it  contains,  to  deny  the  truth  of  the  statements  to 
which  he  has  given  credit  by  his  signature,  so  far  as  those  state- 
ments relate  to  matters  which  are,  or  ought  to  be,  within  his 
knowledge.  With  regard  to  goods  put  on  board,  the  master  may 
sign  the  bill  of  lading,  and  acknowledge  the  nature,  quality,  and 
condition  of  the  goods ;  and  as  this  is  within  the  scope  of  his 
agency,  it  follows  that  his  declarations  in  the  bill  of  lading 
respecting  these  matters  estop  the  owners  to  the  same  extent 
that  they  would  the  master.  Therefore,  tJiircUi/,  when  the 
master  is  acting  within  the  limits  of  his  authority,  the  owners 
are  estopped  in  like  manner  with  him ;  but  it  is  not  within  the 
general  scope  of  the  master's  authority  to  sign  bills  of  lading  for 
any  goods  not  actually  received  on  board. 

This  case  cites  Tindall  v.  Taylor,^  where  Lord  Campbell  says : 
"According  to  Thomson  v.  Dominy,^  an  action  of  contract  on  the 
bill  of  lading  could  not  have  been  maintained  by  the  indorsee  of 
the  bill  of  lading ;  but  in  respect  of  his  property  in  tlie  goods  he 
might  have  maintained  an  action  against  the  master  for  detaining 
or  converting  them,  and  the  master  tvould  he  estopped  from  deny- 
ing that  he  had  the  goods,  after  the  declaration  in  the  bill  of 
lading,  on  the  faith  of  which  the  indorsee  had  bought  and  paid 
for  them." 

In  Maine,  in  Witzler  v.  Collins,^  the  law  is  thus  correctly 
stated :  — 

"  In  the  bill  of  lading  the  goods  are  described  as  '  shipped,'  and 
under  that  description  it  covers  and  binds  the  defendants  for 
no  goods  except  such  as  are  on  the  vessel  or  wharf,  or  such  as 
shall  be  so  delivered  as  and  for  the  goods  so  embraced  in  the  bill 

1  SB  Mass.  103,  107.  3  14  M.  &  W.  403. 

2  4  E.  &  B,  219,  229.  *  70  Me.  - 1  p.  298. 


58  COMMENTARIES   ON   SALES.  [BOOK   III. 

of  lading  and  before  the  vessel  sails.^  The  liabilities  of  these 
defendants,  if  any,  are  as  owners  of  the  steamer  and  in  no  other 
way.  The  same  contract  that  would  bind  them  for  the  safe  car- 
riage of  the  goods  would  also  bind  the  vessel.  .  .  .  The  action 
is  against  the  defendants  as  owners  of  the  boat.  The  goods  were 
received  by  one  employed  for  that  purpose.  So  far  as  appears,  he 
had  no  authority  other  than  that  usually  attached  to  such  a  posi- 
tion, certainly  no  more  than  the  master  ordinarily  has  ;  and  that, 
as  already  seen,  is  sufficient  only  to  bind  the  owners  when  exer- 
cised in  the  ordinary  course  of  business  and  in  relation  to  goods 
delivered  on  board,  or  into  the  actual  possession  of  the  master  at 
the  wharf." 

So,  in  Ohio,  where  the  action  was  by  the  consignees  against  the 
owners,  it  was  held,  in  Dean  v.  King,^  unanimously  by  the  court, 
that  the  owners  were  not  liable.  In  so  deciding,  the  court  thus 
state  the  law :  "  The  execution  of  the  bill  of  lading  by  the  chief 
clerk  of  the  boat,  which  purported  to  cover  the  twenty  bales  in 
dispute,  being  admitted,  and  it  being  conceded  that  they  were  not 
delivered  to  the  consignees  as  per  bill  of  lading,  a  prima  facie 
case  was  made  for  the  plaintiffs  below.  Then  as  to  the  matters 
of  defence :  1.  Was  it  competent  for  the  defendants  to  show,  by 
parol  testimony,  that  the  cotton  in  controversy  had  not  been 
received  by  the  boat,  and  thus  contradict  the  terms  of  the  bill  of 
lading  ?  Certainly  it  was,  and  for  two  reasons  •  first,  in  so  far  as 
the  bill  of  lading  was  a  mere  receipt  for  freight,  it  was  clearly 
subject  to  explanation  by  parol  testimony.  4  Ohio,  334  ;  28  N.  Y. 
598 ;  5  Sold.  531 ;  Abb.  Adm.  196.3  ^^(j^  secondly,  officers  of  a 
vessel  engaged  in  the  business  of  a  common  carrier  have  no  pre- 
sumed authority  to  issue  bills  of  lading  for  freight  not  on  board 
the  vessel,  or  not  delivered  to  some  one  authorized  to  receive 
freight.  And  if  the  bill  of  lading  be  issued  without  authority, 
the  owners  are  not  bound  thereby.  18  How.  191  ;  7  Blatch.  246; 
18  Eng.  L.  &  Eq.  551 :  3  Allen,  107  ;  2  Ex.  274 ;  8  Ex.  333  ;  11 
Mass.  99 ;  10  C.  B.  687-  Nor  is  there  anything  in  the  facts  of 
this  case,  which,  under  the  doctrine  of  estoppel  in  pais,  precluded 
the  defendants  below  from  showing  that  the  goods  in  question 
had  not  been  shipped  on  their  boat,  as  stated  in  the  bill  of  lading, 
or  from  denying  their  liability  for  not  delivering  them  to  the 
consignee." 

And  see  Second  National  Bank  v.  Walbridge,^  where  the  action 
was  against  the  warehouseman  by  the  assignee  of  a  warehouse 

1  Rowley  V.  Bigelow,  12  Pick.  314,  Jones,  4  N.  Y.  497,  in  the  Court  of  Ap- 
315;  The  DeLiware,  14  Wall.  600,  601.  peals. 

2  22  Ohio,  118,  136.  *  19  Ohio,  419. 
8  See  also  The  Bank  of  Rochester  v. 


PART  I.]  RAILWAYS.  69 

receipt,  vvhich  had  been  issued  by  the  warehouseman  by  mistake, 
and  it  was  held,  as  is  correctly  stated  in  the  head-note  of  the 
case, "  That,  there  being  no  privity  of  contract  between  the  defend- 
ant as  maker  and  the  plaintiff  as  assignee  of  the  receipt,  the 
defendant,  in  the  absence  of  all  fraud,  is  not  estopped  from  show- 
ing as  against  the  plaintiff  the  mistake  in  the  giving  of  the  re- 
ceipt, as  a  defence  to  the  action." 

This  case  is  distinguished  ^  from  the  New  York  case  of  Griswold 
V.  Haven,"^  on  the  ground  that,  in  that  case,  the  estoppel  was  held 
to  arise  on  the  false  representation  of  Wright,  one  of  the  defend- 
ants, that  the  grain  mentioned  in  the  receipts  was  in  store  and  in 
good  order ;  the  representation  having  been  made  directly  to  and 
relied  on  by  the  plaintiff  in  making  the  advances.  The  court 
adds :  "  That  this  was  the  ground  of  the  estoppel  enforced  in  that 
case  is  apparent  from  the  comments  made  upon  the  cases  of 
Grant  v.  Norway,^  and  Coleman  v.  Riches,*  and  from  page  607 
of  the  report,  where  Selden,  J.,  in  delivering  the  judgment  of 
the  court,  says :  '  I  have  no  hesitation,  therefore,  in  holding  that, 
under  the  circumstances  of  this  case,  the  defendants  were  bound 
by  the  representations  of  Wright.  I  mean  the  verbal  representa- 
tions ;   not  the  representations  contained  in  the  receipt.''  " 

There  being  no  statute  in  Ohio  affecting  the  rights  of  the  parties, 
the  court  held  that,  as  against  the  assignee  of  the  receipt,  the 
warehouseman  was  not  estopped  from  showing  a  mistake  in  its 
issue. 

The  doctrine  of  these  cases  met  with  the  clear  approval  of  the 
court  in  Louisiana.  There,  in  Fellows  v.  Powell,^  the  law  is  thus 
succinctly  stated :  "  The  master  of  the  boat  acted  through  his 
clerk,  as  the  agent  of  the  owners,  and  whether  they  are  bound  by 
the  bill  of  lading  depends  on  the  question  whether  the  master  had 
authority  to  bind  the  owners  for  the  delivery  of  the  cotton,  before 
it  was  actually  delivered  to  him.  It  has  been  held,  both  in  Eng- 
land and  in  this  country,  that  the  master  of  a  ship  or  other  vessel 
has  no  general  authority,  as  such,  to  sign  a  bill  of  lading  for  goods 
which  are  not  put  on  board  the  vessel ;  and  that  for  the  want  of 
such  authority,  the  owners  of  the  ship  arc  not  responsible  to  par- 
ties taking  a  bill  of  lading  which  has  been  signed  by  the  master 
without  receiving  the  goods  on  board.^  This  doctrine  meets  with 
our  approval ;  and  its  application  to  this  case  defeats  the  plaintiff's 
action." 

The  doctrine  is  put  here  on  this  broad  ground,  as,  under  the 

1  At  p.  426.  6  16  La.  An.  316. 

a  2.')  N.  Y.  .'J96.  e  See  Grant  v.   Norway,  2  Enj?.  L.  & 

8  10  C.  B.  66.5.  Eq.   337  ;    Buckingham   v.    Freeman,    18 

*  29  Eng.  L.  &  Eq.  323.  How.  188. 


60  COMMENTARIES   ON   SALES.  [BOOK   III. 

facts  of  the  case,  the  objection  of  want  of  privity  of  contract,  as 
far  as  the  master  had  power  within  the  scope  of  his  employment 
to  bind  the  owners,  had  no  application. 

Similar  limitations  on  the  power  of  the  master  to  bind  his 
owners  by  signing  bills  of  lading  are  sustained  in  Rhode  Island, 
where,  in  Nichols  v.  De  Wolf,^  such  limitations  are  shown  to 
exist. 

The  question  came  up  directly,  too,  in  North  Carolina  in  con- 
nection with  a  bill  of  lading  or  railway  receipt,  which  had  been 
fraudulently  obtained  from  the  local  station  agent  of  a  railway 
company  by  the  consignor,  who  had  it  filled  up  with  the  plaintiffs' 
names  as  consignees ,  who,  on  the  faith  of  and  reposing  confi- 
dence in  the  bill  of  lading,  accepted  and  paid  the  consignor's 
draft  for  the  cotton  alleged  to  have  been  shipped,  and  which  was 
covered  by  the  bill  of  lading.  So  the  facts,  in  effect,  were  iden- 
tical with  those  in  Armour  v.  Michigan  Central  R.  R.  Co,^  and 
the  decision  is  in  harmony  with  the  English  cases,  and  with  the 
well-decided  cases  in  the  Federal  courts  of  the  United  States,  and 
in  the  courts  of  nearly  all  of  the  States  in  the  Union  in  which  the 
question  has  arisen. 

The  head-note  of  the  case,  which  correctly  states  the  holding 
of  the  case,  is :  "A  common  carrier  is  not  bound  by  a  bill  of 
lading  issued  by  its  agent  unless  the  goods  be  actually  received 
for  shipment,  and  the  principal  is  not  estopped  thereby  from 
showing,  by  parol,  that  no  goods  were  in  fact  received,  although 
the  bill  has  been  transferred  to  a  bond  fide  holder  for  value."  ^ 

The  law  is  similarly  settled  in  Missouri.  There,  in  Louisiana 
National  Bank  v.  Laveille,*  the  question  is  put  categorically :  "  Are 
the  owners  of  a  boat  rendered  liable  at  the  suit  of  a  third  party  in 
consequence  of  a  bill  of  lading  having  been  issued  for  goods  as 
shipped  on  board  that  boat  by  one  apparently  having  authority 
therefor,  to  the  consignor  named  in  such  bill  of  lading,  who  nego- 
tiates a  bill  of  exchange  drawn  on  the  consignee  to  such  third 
party,  who  purchases,  and  has  indorsed  to  him  for  value  the  bill 
of  exchange,  on  the  faith  and  on  the  security  of  the  bill  of  lading, 
which  is  also  transferred  to  him,  without  any  knowledge  or  notice 
of  lack  of  authority  on  the  part  of  him  who  signed  the  bill  of 
lading,  or  that  the  goods  recited  in  the  bill  of  lading  were  never 
shipped  ?  "  And  the  court,  in  answering  this  question  in  the  nega- 
tive, as  they  do  unanimously,  affirming  the  judgment  of  the  court 
below  ,  after  an  examination  of  the  authorities,  conclude  :  —  . 

1  1  R.  I.  277.  3  Williams  v.  The  Wilmington  &  Wel- 

2  65  N.  Y.  111.  don  E.  R.  Co.,  93  N,  C.  42,  45. 

*  52  Mo.  380. 


PART   I.]  RAILWAYS.  61 

"  It  will  thus  be  seen  from  the  above-cited  authorities  that  the  in- 
terrogatory propounded  at  the  outset  must  meet  with  a  reply  in  the 
negative.  It  is  a  well-settled  maxim  in  admiralty  jurisprudence 
that '  freight  is  the  mother  of  wages,'  and  under  the  circumstances 
detailed  in  evidence  here,  so  far  as  charging  the  owners  of  the 
boat  is  concerned,  the  actual  delivery  of  the  goods  on  board  occu- 
pies towards  the  bill  of  lading  for  those  goods  the  same  maternal 
relation.  It  would  seem  that  there  is  an  element  of  hardship  in 
this  case,  but  it  is  a  hardship  which  readily  could  have  been 
avoided  had  those  precautionary  measures  and  inquiries  which  the 
law  enjoins  upon  those  about  to  purchase  these  quasi  negotiable 
instruments,  or  bills  of  exchange  secured  thereby,  been  pursued." 

The  last  case  to  which  we  shall  refer  in  this  connection  is  a  case 
in  Maryland  (The  Baltimore  &  Ohio  R.  R.  Co.  v.  Wilkins),^  where 
again  the  court  are  unanimous  in  holding  that  a  carrier  is  not  lia- 
ble on  a  fraudulent  bill  of  lading  signed  by  the  shipmaster  or  sta- 
tion agent  without  the  receipt  of  the  goods.  In  this  case,  as  in  the 
Supreme  Court  of  Canada  case,^  the  fraudulent  alleged  consignor 
was  himself  the  station  agent  of  the  railway,  and  the  consignee, 
in  faith  and  reliance  on  the  bill  of  lading,  accepted  and  paid  the 
alleged  shipper's  draft.  In  a  very  able  judgment  the  court,  in 
holding  that  neither  a  railroad  company  nor  a  shipowner  could 
be  made  liable  in  such  a  case,  said :  "  The  liability  in  either  case 
must  depend  on  the  question  of  the  authority  of  the  master  or 
agent  to  bind  his  principal  by  such  acts.  And,  as  we  have  seen, 
it  has  been  conclusively  settled  that  no  such  authority  exists,  and 
that  every  one  taking  such  instruments,  or  making  advances  on 
the  faith  of  them,  must  be  regarded  as  having  notice  of  this  want 
of  authority,  and  acts  at  his  own  risk,  and  on  the  responsibility 
of  the  master  or  agent  alone  for  damages,  as  to  the  truthfulness  of 
the  statements  appearing  on  the  face  of  such  documents,  that  the 
specified  goods  have  been  shipped  or  received  at  the  depot  for 
transportation." 

And  again :  "  But  even  under  the  doctrine  upon  which  the  ap- 
pellees' counsel  rely,  that  '  if  one  of  two  innocent  persons  must 
suffer  by  a  deceit,  it  is  more  consonant  to  reason  that  he  who 
puts  confidence  in  the  deceiver  should  be  the  loser  rather  than  a 
stranger,'  we  do  not  clearly  see  how  the  appellees  are  strangers  to 
this  transaction,  or  how  it  can  be  said  the  company  more  than 
they  put  confidence  in  the  deceiver,  for  whilst  the  deceiver  was 
the  company's  agent,  he  was  also  the  appellees'  consignor  with 
whom  they  had  been  doing  business.     If  as  agent  he  deceived  the 

»  44  Md.  11.  2  Erb  v.  The  Great  Western  Ry.  Co., 

5  S.  C.  of  Can.  R.  179. 


62  COMMENTARIES   ON   SALES.  [BOOK   III. 

company,  as  their  consignor  with  whom  they  were  dealing  he 
equally  deceived  the  appellees ;  and  if  they  relied  on  him  as  an 
honest  and  trustworthy  consignor  and  business  correspondent  and 
dealer,  and  were  deceived,  as  they  undoubtedly  were  by  him,  how 
can  it  be  consonant  with  reason  and  justice  for  them  to  shift  their 
loss  arising  from  such  confidence  and  trust,  upon  those  who  were 
equally  deceived  by  the  same  party  ? " 

In  this  case  the  court  directs  attention  to  Thompson  v.  Dominy,' 
where  Alderson,  B.,  says :  "  This  is  another  instance  of  the  con- 
fusion, as  Lord  Ellenborough  in  Waring  v.  Cox^  expresses  it,  which 
'  has  arisen  from  similitudinary  reasoning  upon  this  subject.'  Be- 
cause in  Lickbarrow  v.  Mason  ^  a  bill  of  lading  was  held  to  be 
negotiable,  it  has  been  contended  that  that  instrument  possesses 
all  the  properties  of  a  bill  of  exchange ;  but  it  would  lead  to 
absurdity  to  carry  the  doctrine  to  that  length.  The  word  '  nego- 
tiable '  was  not  used  in  the  sense  in  which  it  is  used  as  applicable 
to  a  bill  of  exchange,  but  as  passing  the  property  in  the  goods 
only." 

With  the  same  "  similitudinary  reasoning  "  it  was  sought  in  the 
Maryland  case  by  the  counsel  for  the  appellees  to  make  the  de- 
fendants liable  for  the  unauthorized  act  of  the  station  agent, 
because  in  Tome  v.  Parkersburg  Branch  R.  R.  Co.*  it  had  been 
determined  that  the  corporation  was  responsible  for  the  acts  of 
its  treasurer  and  transfer  agent,  who  surreptitiously  and  fraudu- 
lently issued  for  his  own  benefit  false  and  forged  certificates  of 
stock  of  the  company,  and  passed  them  off  upon  the  commercial 
public,  who  advanced  money  on  pledges  of  them,  and  received, 
treated,  and  acted  upon  them  as  genuine.  But  the  court  in  Bal- 
timore &  Ohio  R.  R.  Co.  V.  Wilkins  ^  thus  disposed  of  this  con- 
tention :  "  This  treasurer  and  transfer  agent  was  made  by  the 
company  the  custodian  of  the  ledger  and  other  books  relating 
exclusively  to  the  ownership  and  transfer  of  its  capital  stock ;  he 
was  authorized  to  prepare  and  countersign  all  certificates  of  stock 
to  be  issued,  and  to  affix  the  company's  seal,  which  was  intrusted 
to  his  keeping  and  placed  in  his  office,  to  all  such  certificates 
when  signed  by  the  president ;  he  was,  in  fact,  constituted  the 
executive  officer  of  the  corporation  with  large  discretionary  pow- 
ers, and  was  held  out  by  the  company  to  the  public  as  the  proper 
party  from  whom  information  as  to  the  ownership  of  its  stock 
was  to  be  ascertained,  and,  in  fact,  as  the  source  of  information 
.on  that  subject.     In  this  way  the  public  were  by  the  acts  of  the 

1  14  M.  &  W.  403,  408.  *  39  Md.  36. 

2  1  Camp.  370.  6  44  ji^.  n^  27. 
8  2  T.  R.  75. 


PART   I.]  RAILWAYS.  63 

corporation  '  exposed  to  the  risks  of  fraudulent  devices  most  dan- 
gerous because  most  difficult  to  detect.'  The  authority  of  such 
an  officer,  both  real  and  apparent,  differs  widely  in  its  extent  and 
scope  from  that  of  a  mere  station  agent.  The  instruments  issued 
in  those  cases  are  also  of  an  entirely  different  character  from 
those  issued  in  this  case.  The  distinction  between  them  has  been 
well  stated  in  the  brief  of  the  appellant's  counsel.  Stock  in  cor- 
porations is  intangible  property.  Stock  certificates  are  not  prom- 
ises to  do  anything  with  particular  articles  of  property,  but  simply 
statements  of  ownership  of  shares  or  interests  in  property.  It  is 
the  peculiar  province  of  the  treasurer  and  transfer  agent,  whom 
the  company  authorizes  to  give  and  make  such  statements,  to 
make  known  to  the  commercial  public  dealing  with  the  stock  the 
facts  of  such  ownership  and  to  whom  the  shares  belong.  But  a 
bill  of  lading  performs  a  very  different  function.  It  evidences 
and  is  a  contract  for  the  transportation  of  goods,  and  is  not  an 
instrument  intended  to  give  information  as  to  the  ownership  of 
intangible  property.  The  agent  who  signs  it  is  not  held  out  to 
the  public  as  authorized  to  make  statements  like  those  in  a  certi- 
ficate of  stock,  but  only  to  make  contracts  to  carry  visible  and 
tangible  property.  The  property  which  is  thus  stipulated  to  be 
carried  being  visible  and  tangible,  the  fact  whether  it  has  been 
shipped  or  received  at  the  depot  for  shipment  or  not  can  be 
determined  and  easily  determined  in  a  multitude  of  ways  without 
applying  to  the  agent.  To  the  general  doctrines  on  which  our 
decision  in  these  stock  cases  was  based  there  is,  and  must  be,  the 
exception  of  the  recognized  and  well-settled  princijiles  of  commer- 
cial law  in  reference  to  bills  of  lading,  which  we  have  stated,  and 
which  governs  the  present  case." 

It  was  the  same  "  similitudinary  reasoning "  that  was  con- 
demned in  this  case,  and  by  Lord  Ellenborough  in  Waring  v. 
Cox,^  that  has  led  in  New  York  to  the  adoption  of  an  utterly  un- 
sound general  "rule,"  which,  as  applied  in  that  State,  and  as 
culminating  in  the  radically  incorrect  decision  in  Armour  v. 
Michigan  Central  R.  R.  Co. ,2  is  destructive  of  a  very  large  part 
of  the  law  of  principal  and  agent ;  and  in  that  State,  and  in  all 
other  States  which  have  adopted  that  "  rule,"  must  necessarily 
leave  the  whole  matter  of  the  law  as  to  principal  and  agent 
utterly  at  sea. 

Having  now  shown,  as  we  have  sought  to  do,  that  not  only  is 
the  whole  solid  body  of  law  in  England  on  the  subject  opposed  to 
the  holding  of  Armour  v.  Michigan  Central  R.  R.  Co.,3  and  to  the 

1  1  Camp.  370.  3  65  N.  Y.  Ill, 

2  65  N.  Y.  111. 


64  COMMENTARIES    ON   SALES.  [bOOK    III. 

two  or  three  cases  outside  of  New  York  which  have  followed  it, 
but  that  the  law  in  this  country,  on  principle  and  the  overwhelm- 
ing weight  of  authority,  is  in  harmony  with  the  well-established 
law  of  England  as  to  the  non-liability  of  a  shipowner  or  other 
common  carrier  on  the  bill  of  lading  or  freight  receipt,  signed  by 
the  shipmaster  or  the  freight  agent  or  shipping  clerk  of  a  rail- 
way, without  a  receipt  of  the  goods,  we  give  a  little  further  con- 
sideration to  the  fallacious  "rule"  on  which  Armour  v.  Michigan 
Central  R.  R.  Co.^  was  decided. 

The  first  thing  specially  noticeable  in  connection  with  it  is,  that 
it  originally  came  into  existence,  not  as  the  decision  of  any  court 
of  authority,  or,  in  fact,  of  any  court  at  all,  nor  even  as  the  state- 
ment of  a  principle  deduced  by  any  respectable  jurist,  but  was 
simply  the  invention  of  contesting  counsel  in  the  case  of  North 
River  Bank  v.  Aymar,^  where  we  find  it  first  formulated.  The 
majority  of  the  court  there,  being  caught  by  its  phraseology, 
adopted  it,  and  largely  rested  upon  it,  in  their  decision  of  the 
case. 

It  is  next  observable  that  the  decision  in  that  case  was  that  of 
a  divided  court,  Cowen  and  Bronson,JJ.,  being  the  majority,  while 
Nelson,  C.  J.,  dissented,  with  whom  also  agreed  the  judge  in  the 
court  below,  —  the  Superior  Court  of  New  York.  So,  at  that 
stage,  there  were  two  judges  on  each  side.  The  case  was  then 
taken  to  the  New  York  Court  of  Errors,  where  the  judgment  was 
reversed.^ 

So,  as  a  mere  matter  of  authority,  neither  the  rule,  as  it  has 
since  been  construe(J,  distorted,  and  acted  on,  nor  the  case,  can 
be  considered  as  of  any  weight. 

The  various  forms  which  the  "  rule "  has  assumed  from  the 
time  it  was  first  formulated  by  the  ultimately  unsuccessful  counsel 
in  North  River  Bank  v.  Aymar*  (a.d.  1842)  down  to  the  time  it 
was  used  in  Bank  of  Batavia  v.  New  York,  &c.  R.  R.  Co.^  (a.  d. 
1884)  is  rather  striking.  As  it  originally  appeared,  under  "  the 
ingenuity  of  counsel,"  it  was  as  follows  :  — 

"  Whenever  the  very  act  of  the  agent  is  authorized  hy  the  terms 
of  the  poiver,  —  that  is,  U'henever  by  comparing  the  act  done  by  the 
agent  with  the  words  of  the  power,  the  act  is  in  itself  warranted  by 
the  terms  used,  —  such  act  is  binding  on  the  constituent  as  to  all 
persons  dealing  in  good  faith  ivith  the  agent.  Such  persons  are 
not  bound  to  inquire  into  facts  aliunde.  The  apparent  authority 
is  the  real  authority." 

1  65  N.  Y.  111.  V.   Butchers',  &c.    Bank,    16   N.  Y,  153, 

2  3  Hill,  262,  270.  154. 

8  See   the   facts   as  to  this  st-  ted   in  *  3  Hill,  262,  270. 

Mechanics'  Bank  v.  New  York,  &c.  R.  R.  &  33  Hun,  589,  598. 

Co.,  13  N.  Y.  632,  633;  Farmers'  &c.  Bank 


PART   I.]  RAILWAYS.  65 

Denio,  C.J.,  in  Farmers',  &c.  Bank  v.  Butchers',  &c.  Bank,i 
thus  states  it :  — 

"  Where  an  agent  is  authorized  to  bind  a  principal  bj  the 
making,  acceptance,  or  indorsement  of  negotiable  paper,  and  he 
makes,  accepts,  or  indorses  a  note  or  bill  in  such  a  form  as  appar- 
ently to  he  within  his  poiver,  and  so  that,  hy  comparing  the  power 
ivith  the  act  alleged  to  he  done  in  i^ursuance  of  it,  the  latter  ap- 
pears to  he  authorized,  and  the  security  is  negotiated  to  an  inno- 
cent party,  wlio  parts  with  value,  without  notice  that  there  has 
been  any  abuse  of  the  authority,  the  principal  is  bound,  though  it 
be  shown  that  the  paper  was  given  in  a  case  or  for  a  purpose  to 
which  the  authority  did  not  extend." 

In  the  later  case  of  Farmers',  <Src.  Bank  v.  Butchers',  &c.  Bank,^ 
the  "  rule  "  undergoes  another  change.  It  is  there  :  "  Where  the 
party  dealing  with  an  agent  has  ascertained  that  the  act  of  the 
agent  corresponds  in  every  particular,  in  regard  to  which  such 
party  has  or  is  presumed  to  have  any  knowledge,  with  the  terms 
of  the  power,  he  may  take  the  representation  of  the  agent  as  to 
any  extrinsic  fact  which  rests  peculiarly  within  the  knowledge  of 
the  agent,  and  which  cannot  he  ascertained  hy  a  comparison  of  the 
power  with  the  act  done  under  it" 

In  Griswold  v.  Haven  ^  the  "  rule  has  undergone  a  wonderful 
transformation.  As  stated  there,  it  is  :  "  Where  the  authority  of 
an  agent  depends  upon  some  fact  outside  the  terras  of  his  power, 
and  which  from  its  nature  rests  particularly  within  his  knowl- 
edge, the  principal  is  bound  by  the  representation  of  the  agent, 
although  false,  as  to  the  existence  of  such  fact." 

This  statement  of  the  counsel's  "  rule  "  in  North  River  Bank 
V.  Aymar,*  radically  varied  as  it  was,  is  adopted  in  New  York, 
&c.  R.  R.  Co.  V.  Schuyler,^  with  the  additional  feature  added,  that 
the  extrinsic  fact  which  constitutes  the  condition  of  the  authority 
is  necessarily  represented  to  exist  by  the  agent's  act,  though  by 
inquiry  it  might  be  discovered  that  the  act  was  not  within  his 
power. 

In  Armour  v.  Michigan  Central  R.  R.  Co.^  this  radical  variation 
from  the  rule  as  it  was  originally  formulated  by  counsel  and 
adopted  by  the  mere  majority  of  the  court  in  the  subsequently 
overruled  case  of  North  River  Bank  v.  Ayraar,"  with  a  little  fur- 
ther variation,  is  acted  on ;  and  the  principal,  it  is  there  stated, 
must  suffer  from  an  actual  exercise  of  authority  by  the  agent 
"not  exceeding  the  appearance  of  what  is  granted." 

i  14  N.  Y.  623,  633.  5  34  N.  Y.  30,  68,  69. 

2  16  N,  Y.  125,  135.  6  55  n.  y.  Ill,  121. 

8  25  N.  Y.  595,  602.  1  3  Hill,  262. 
*  3  Hill,  262,  270. 

TOL.    II.  6 


66  COMMENTARIES   ON  SALES.  [BOOK   III. 

Coming  down  still  later,  in  Bank  of  Batavia  v.  New  York,  &e. 
R.  R.  Co.^  the  application  of  this  shifting  and  distorted  "  rule " 
is  thus  put :  "  The  authority  of  the  agent  in  this  case  was  general, 
to  receive  property  for  shipment  and  transportation,  and  issue 
to  the  shipper  bills  of  lading  like  that  in  question.  The  exercise 
of  this  poiver  of  issuing  the  bill  depended  upon  the  fact  dehors  the 
power,  the  receipt  of  the  property  ;  ^  and  that  fact,  whether  or  not 
the  goods  had  been  received,  rested  particularly  within  his  per- 
sonal knowledge.  And  his  statement  in  this  respect,  though 
false,  made  in  such  due  manner  and  form,  charged  the  defendant 
in  belialf  of  the  plaintiff,  who  legitimately  and  in  good  faith  made 
the  advances  in  reliance  upon  it  as  true." 

Notice  now,  in  the  history  of  the  "  rule,"  the  following  facts : 
It  was  formulated  by  counsel,  unsustained  by  any  authority,  in 
1842,  when,  in  reversal  of  the  judgment  of  the  New  York  Supe- 
rior Court,  it  was  adopted  by  a  mere  majority  of  the  Supreme 
Court,  —  but  two  judges  to  one ;  thus  showing  two  judges  on 
each  side  of  the  question.  The  case  was  then  reversed  by  the 
Court  of  Errors ;  and  the  rule,  as  far  as  it  was  acted  on  in  the 
case,  was  thus  condemned  by  the  highest  court  of  the  State  ;  after 
which  it  seems  to  have  remained  in  abeyance  for  fourteen  years, 
when  it  was  resuscitated  by  a  majority  of  the  Supreme  Court  of 
the  State,  although  it  had  previously,  in  the  same  year,  as  it  has 
since  been  construed  and  acted  on,  been  disapproved  and  con- 
demned by  the  unanimous  judgment  of  the  same  court. 

The  effect  of  the  late  statements  of  the  rule  amounts  to  this : 
"  If  an  agent  under  any  circumstances  has  the  power  to  perform 
an  act,  then  his  performing  the  act  at  all  is  binding,  —  his  per- 
forming the  act  at  all  being  conclusive  on  the  principal  that  the 
act  has  been  done  in  accordance  with  the  power,  though  it  has 
not  been,  and  though  it  can  be  ascertained  on  inquiry  that  it  has 
not  been." 

But  the  rule,  as  originally  stated  and  relied  on,  was  not  at  all 
to  this  effect.  It  was :  ''  Whenever  the  very  act  of  the  agent  is 
authorized  by  the  terms  of  the  power,  —  that  is,  whenever  by 
comparing  the  act  done  by  the  agent  with  the  words  of  the  power, 
the  act  is  itself  warranted  by  the  terms  used,  —  such  act  is  bind- 
ing on  the  constituent  as  to  all  persons  dealing  in  good  faith  with 
the  agent.  Such  persons  are  not  bound  to  inquire  into  facts  ali- 
unde.    The  apparent  authority  is  the  real  authority." 

This,  really,  amounts  to  very  little  more  than  saying,  "  If  an 
agent  has  the  power  he  has  the  power;"  that  is,  ^'■whenever  the 

1  33  Hud,  589,  598.  2  This  is  not  correct.     The  receipt  of 

the  property  is  a  part  of  the  power. 


PART    I.]  RAILWAYS.  67 

very  act  of  the  agent  is  authorized  hy  the  terms  of  the  power,^^ 
then  the  act  is  binding,  or,  as  still  further  explained,  "  when- 
ever by  comparing  the  act  done  by  the  agent  with  the  words  of  the 
power ^  the  act  is  itself  warranted  by  such  terms  used^''  the  act  is 
binding. 

In  the  cases  in  Qo  N.  Y.  and  33  Hun,  the  cases  do  not  come 
within  this  self-evident  proposition,  as  it  is  formulated.  The 
"  very  act  of  the  agent  authorized  by  the  terms  of  the  power  "  of 
a  shipmaster,  is  to  sign  bills  of  lading  for  goods  actually  re- 
ceived ;  just  as  "  the  terms  of  the  power  "  of  the  master  to  sell 
tlie  ship,  or  to  sell  a  stranger's  cargo,  are  that  such  power  can 
be  exercised  only  when  the  necessities  of  the  case  demand  it ;  and 
the  mere  signing  of  the  bills  is  no  more  justified  by  him,  nor  any 
more  binding  on  the  owner,  when  the  "  very  act  is  not  within  the 
terms  of  the  power,"  than  it  is  in  the  case  of  the  sale  of  the  ship 
or  cargo. 

So,  again,  "  whenever,  by  comparing  the  act  done  by  the  agent 
with  the  words  of  the  power,  the  act  is  itself  warranted  by  such 
terms  used,"  the  act  is  binding.  The  act  of  a  master  under  "  the 
words  of  the  power  ...  is  itself  warranted  by  such  terms  used," 
only  when  a  bill  of  lading  is  signed  on  receipt  of  the  goods.  By 
the  very  "  words  of  the  power  "  he  is  not  "  warranted  by  such 
terras  used,"  in  signing  a  bill  of  lading  without  having  received 
the  goods,  any  more  than  he  is  warranted  in  selling  the  ship  or 
cargo  where  no  necessity  for  such  sale  exists,  when  the  very  terms 
of  his  power  do  not  warrant  him  in  selling  without  the  existence 
of  such  necessity. 

All  that  would  seem,  then,  to  be  left  of  the  rule,  would  be  that 
when  the  very  act  of  the  agent  has  really  been  performed  by  him 
within  the  very  terms  of  his  poiver,  such  act,  having  been  so  per- 
formed within  the  terms  of  the  power,  is,  as  to  third  parties, 
binding  on  the  principal ;  such  third  parties  not  being  bound  to 
inquire  into  facts  without  the  power  (^aliunde)  ;  the  apparent 
authority  being  the  real  authority. 

Fairly  coming  within  this  statement  would  be  this,  which  itself 
carries  the  rule  into  very  doubtful  territory  :  Where  an  agent  has 
power  conferred  on  him  to  perform  an  act,  and  the  act  is  per- 
formed in  accordance  with  the  terms  of  his  power,  the  act  is  bind- 
ing on  the  principal,  though  it  might  have  been  ascertained  by 
inquiry,  that,  as  to  some  matter  aliunde,  the  performance  of  the 
power  had  been  for  some  other  purpose  than  that  which  the  prin- 
cipal intended.  Thus,  a  shipmaster  having  power  to  sign  bills  of 
lading  only  on  receipt  of  the  goods,  if,  having  received  the  goods, 
he  has  signed  the  bill  of  lading,  that  would  be  binding  on  the 


68  COMMENTARIES   ON    SALES.  [bOOK    III. 

owner,  though,  —  the  shipper  being  no  party  to  the  fraud,  —  his 
purpose,  when  he  signed  the  bill  of  lading,  was  to  fraudulently 
make  away  with  the  goods.  The  shipper  would  not  be  affected 
by  that ;  he  being  no  party  to  the  act,  and  the  master's  act  in 
signing  the  bill  of  lading  on  receipt  of  the  goods  being  "  within 
the  very  terms  of  his  power," — within  the  very  scope  of  his 
employment. 

"  The  apparent  authority  is  the  real  authority."  True !  The 
apparent  authority  and  the  real  authority  are  alike,  that  the  ship- 
master has  the  power  to  sign  bills  of  lading  on  receipt  of  the 
goods,  and  not  otherwise  ;  and  whenever  his  act  comes  within 
this  apparent  and  real  authority,  then  the  act  is  binding  on  the 
principal.     Otherwise,  it  is  not. 

"  The  apparent  authority  is  the  real  authority,"  and,  therefore, 
the  holding  out  of  one  as  an  agent  to  perform  an  act  is  as  binding 
on  the  principal  as  to  third  parties,  to  whom  the  alleged  agent  is 
so  held  out  as  having  power  to  perform  the  act,  as  though  he 
really  possessed  the  power.  This  is  all  that  is  meant,  even 
according  to  their  own  showing,  by  the  court,  in  the  overruled 
case  of  iSorth  River  Bank  v.  Aymar;^  and  by  Lord  EUenborough, 
in  Pickering  v.  Busk,^  whom  they  quote  to  sustain  the  counsel's 
rule,  thus-  "I  cannot  subscribe  to  the  doctrine  that  a  broker's 
engagements  are  necessarily  and  in  all  cases  limited  to  his  actual 
authority,  the  reality  of  which  is  afterwards  to  be  tried  by  the 
fact.  It  is  clear  that  he  may  bind  his  principal  within  the  limits 
of  the  authority  with  which  he  has  been  apparently  clothed  by 
the  principal  in  respect  to  the  subject-matter  ;  and  there  would 
be  no  safety  in  mercantile  transactions,  if  he  could  not." 

The  authority  with  which  the  broker  Avas  there  apparently 
clothed  was  to  sell  a  quantity  of  hemp.  The  authority  with 
which  a  shipmaster  is  apparently  clothed  is  to  sign  bills  of  lading 
on  receipt  of  the  goods.  If  a  broker  has  been  held  out  by  the 
principal  as  having  authority  to  sell  hemp,  his  apparent  authority 
by  such  holding  out  is  his  real  authority.  So,  if  one  is  held  out 
as  having  the  power  to  sign  bills  of  lading  on  receipt  of  the  goods, 
his  apparent  authority  is  his  real  authority,  and  the  owner  of  the 
ship  is  as  liable  for  holding  out  the  party  so  signing  the  bills  as 
master,  as  though  he  were  master ;  just  as  the  owner  of  goods, 
who  has  held  out  a  broker  as  having  power  to  sell  goods,  is  bound 
by  such  a  sale  of  goods  by  the  broker  who  has  been  held  out  as 
having  such  power ;  the  apparent  authority  in  each  of  such  cases 
being  the  real  authority. 

In  precisely  the  same  way,  and  on  the  same  principle,  where  A. 

1  3  Hill,  262,  270.  2  15  East,  38,  43. 


PART    I.J  RAILWAYS.  69 

holds  out  B.  as  a  partner,  A.  is  bound  by  the  acts  of  B.,  within 
the  scope  of  the  business ;  the  apparent  authority  being  the  real 
authority.  But,  because  B.,  having  been  held  out  by  A.  as  a 
partner,  has  power  to  bind  A.  by  contracts  within  the  scope  of 
the  business,  it  does  not  therefore  follow  that  A.  is  bound  by  a 
guarantee  given  by  B.,  outside  of  the  scope  of  the  business,  un- 
authorized by  A.,  on  the  ground  that  if  A.  had  authorized  such  a 
guarantee  it  would  be  binding  on  him,  and  on  the  further  ground 
that  the  very  fact  that  B.  has  given  the  guarantee  is  a  warranty 
to  all  third  parties,  binding  on  A.,  that  A.  did  give  such  an 
authority. 

The  former  of  these  two  propositions,  which  is  a  thoroughly 
sound  one,  is  covered  by  Pickering  v.  Busk.^  The  latter  of  the 
two  propositions,  which  is  utterly  unsound  and  absurd,  is  covered 
by  Armour  v.  Michigan  Central  R.  R.  Co. ,2  and  Bank  of  Batavia  v. 
New  York,  &c.  R.  R.  Co.,^  under  the  twisting  and  distortion  of 
the  propositions  in  (as  the  result  of  a  strict  analysis)  the  self- 
evident  rule,  as  stated  by  counsel,  in  the  overruled  case  of  North 
River  Bank  v.  Aymar.* 

The  case  in  East  was  one  where  the  act  of  the  owner  of  hemp 
in  having  it  placed  in  the  name  of  a  broker,  whose  business  it 
was  to  buy  and  sell  hemp,  was  held  to  amount  to  the  clothing 
the  broker  with  an  authority  to  make  the  sale.  Thus,  imme- 
diately following  the  extract  quoted  in  North  River  Bank  v. 
Aymar,^  Lord  Ellenborough  says  :  "  If  the  principal  send  his 
commodity  to  a  place,  where  it  is  tlie  ordinary  business  of  the 
person  to  whom  it  is  confided  to  sell,  it  must  be  intended  that  the 
commodity  was  sent  thither  for  the  purpose  of  sale.  If  the  owner 
of  a  horse  send  it  to  a  repository  of  sale,  can  it  be  implied  that 
he  sent  it  thither  for  any  other  purpose  than  that  of  sale  ?  Or,  if 
one  send  goods  to  an  auction-room,  can  it  be  supposed  that  he 
sent  them  thither  for  safe  custody  ?  Where  the  commodity  is 
sent  in  such  a  way  as  to  exhibit  an  apparent  purpose  of  sale,  the 
principal  will  be  bound,  and  the  purchaser  safe.  .  .  .  The  sale 
"was  made  by  a  person  wlio  had  all  the  indicia  of  property ;  the 
hemp  could  only  have  been  transferred  into  his  name  for  the 
purpose  of  sale  ;  and  the  party  who  has  so  transferred  it  cannot 
now  rescind  the  contract.  If  the  plaintiff  had  intended  to  retain 
the  dominion  over  the  hemp,  he  should  have  placed  it  in  the 
wharfinger's  books  in  his  own  name."° 

There  is  no  question  in  this  case  as  to   the   broker  having 

'  15  East,  38.  *  3  Hill,  262. 

*  6.5  N.  Y.  111.  53  Hill,  270. 

»  33  Hun,  589.  «  Pickering  v.  Busk,  15  East,  43,  44. 


70  COMMENTARIES   ON   SALES.  [BOOK    III. 

exceeded  the  authority  which,  in  effect,  he  was  held  out  by  his 
principal  to  have  possessed.  Therefore,  it  has  no  application  to 
the  case  of  a  shipmaster  signing  bills  of  lading  without  receipt  of 
the  goods,  when  he  has  not  been  held  out  by  the  owner  as  having 
any  such  authority. 

Even  in  North  River  Bank  v.  Aymar  itself,  the  statement  of  the 
law  by  Cowen,  J.,  in  delivering  the  majority  judgment  of  himself 
and  Bronson,  J.,^  shows  that  Armour  v.  Michigan  Central  R.  R. 
Co.,'-^  and  Bank  of  Batavia  v.  The  New  York,  (fcc.  R.R.  Co.,^  have 
been  wrongly  decided.  Thus  ;  "  The  general  rule,  that  when  an  ai- 
torney  does  any  act  beyond  the  scope  of  his  power  it  is  void  even  as 
betiveen  the  appointee  and  the  principal,  has  always  prevailed,  and 
is  indeed  elementary  in  the  doctrine  of  powers.  The  ground  on 
which  the  rule  rests  is  familiar.  The  appointee  need  not  deal 
with  the  attorney  unless  he  choose ;  and  it  is  very  reasonable  that 
he  should  be  bound  to  inspect  the  power,  when  in  writing,  or 
to  learn  its  language  in  the  best  way  he  can,  when  it  is  by  parol. 
On  becoming  acquainted  with  it,  he  shall  be  holden  to  understand 
its  legal  effect,  and  must  see,  at  his  peril,  that  the  attorney  does 
not  transgress  the  prescribed  boundary  in  acting  under  it.^' 

This  is  sound  law,  and  is  right  in  the  teeth  of  Armour  v.  Michi- 
gan Central  R.  R.  Co.,  and  Bank  of  Batavia  v.  The  New  York, 
&c.  R.  R.  Co. ,  both  of  which  cases  hold  that  the  principal  is 
bound  by  the  acts  of  the  agent,  though  the  latter  do  "  transgress 
the  prescribed  boundary  in  acting  under  it." 

Similar  sound  principles  are  laid  down  in  the  two  cases,  which, 
in  addition  to  Pickering  v.  Busk,*  were  cited  by  the  majority  of 
the  court  in  North  River  Bank  v.  Aymar,^  to  sustain  the  "  rule  " 
formulated  by  counsel  in  that  case.  And  both  of  these  were 
New  York  cases,  the  judgments  in  which  were  the  unanimous 
judgments  of  the  court. 

In  the  first  of  these,  Andrews  v.  Kneeland,^  it  is  said  by  the 
court.  Savage,  C.  J.,  delivering  the  judgment:  ^^ An  agent  con- 
stituted  for  a  particular  jjurpose,  and  under  a  limited  and  circum- 
scribed power,  cannot  bind  his  principal  by  an  act  beyond  his 
authority." 

This  exactly  describes  the  position  of  a  shipmaster,  or  a  railway 
station  agent  or  shipping  clerk,  who  is  constituted  an  agent  to 
sign  bills  of  lading  or  freight  receipts  on  actual  receipt  of  the 
goods  only  ;  their  power  being  not  only  so  expressly  and  impliedly 
*'  limited  and  circumscribed,"  but  it  being  notorious  to  every  one 

i  At  p.  266.  4  15  East,  38. 

2  65  N.  Y.  111.  6  3  Hill,  at  p.  270. 

8  33  Hun.  589.  6  6  Cow.  354,  357. 


PART   I.]  RAILWAYS.  71 

that  it  is  so  limited  and  circumscribed ;  and,  therefore,  any  one 
taking  such  a  bill  of  lading  or  freight  receipt  does  so  with  full 
knowledge  of  the  "  limited  and  circumscribed  power "  of  the 
party  who  has  so  signed  it ;  and  if  he  so  take  it  on  trust,  "  he 
does  so  at  his  peril." 

The  other  New  York  case^  is  to  the  same  effect.  There, 
another  New  York  case,  Gibson  v.  Colt,^  is  referred  to,  where  a 
shipmaster  had  authority  to  sell  a  ship,  with  reference  to  which 
he  made  an  untrue  representation,  and  it  was  held  that  the  master 
was  a  special  agent,  and  if  he  exceeded  his  authority  when  he 
made  the  representation,  his  principals  were  not  bound,  and  there- 
fore the  remedy  was  against  the  agent  alone. 

This,  too,  is  opposed  to  the  holding  in  the  late  New  York  cases. 
He  had  power  to  sell  the  ship,  as  the  master  has  power  to  sign 
bills  of  lading,  but  "  whenever  the  very  act  of  the  agent ^^  in  selling 
the  ship  or  in  signing  the  bills  of  lading,  is  not  "  authorized  by  the 
terms  of  the  power;"  or  "  whenever  hy  comparing  the  act  done  by 
the  agent  with  the  words  of  the  power,  the  act  itself  is  "  not  "  war- 
ranted by  such  terms  used,"  ^  then  the  principal  is  not  bound ;  as 
he  is  not,  as  the  owner  of  a  ship,  or  proprietor  of  a  railway,  when 
the  very  terms  of  the  power  are  that  a  bill  of  lading  or  freight 
receipt  can  only  be  given  by  a  master  of  a  ship  or  station  agent 
of  a  railway,  on  actual  receipt  of  the  goods ;  and  such  bill  of 
lading  or  freight  receipt  has  been  signed  without  receipt  of  the 
goods. 

The  absurdity  of  the  late  New  York  cases,  which,  as  we  have 
shown,  have  not  even  the  bad  merit  of  what  Lord  Ellenborough 
condemned  in  Waring  v.  Cox,'*  as  "  similitudinary  reasoning,"  is 
made  further  apparent  by  other  New  York  demsions,  such  as 
White  V.  Skinner,^  Munn  v.  Commission  Co.,^  and  by  the  numer- 
ous other  decisions  cited  in  the  reports  of  these  cases. 

We  have  dealt  thus  exhaustively  with  this  question,  because  of 
its  great  importance,  and  because  of  the  vast  amount  of  evil  that 
such  a  decision  as  Armour  v.  Michigan  Central  R.  R.  Co.'^  is 
calculated  to  produce. 

Finally,  it  seems  that  the  court  itself  which  delivered  the  judg- 
ment in  North  River  Bank  v.  Aymar,^  and  which  was  subsequently 
overruled,  were  so  doubtful  as  to  their  own  judgment,  that  they 

1  Rossiter   v.  Rossiter,   8  Wend.    494,  *  1  Camp.  370. 
499,  stated  by  us  supra.,  p.  41.  ^  13  Johns.  307. 

2  7  Johns.  390.  6  15  Johns.  44. 
8  Rule  as  formulated  in  North  River           ^  65  N.  Y.  111. 

Bank    v.   Aymar,   3    Hill,   at  p.   270,  on  »  3  jjm^  262. 

which,  not  without  a  good  deal  of  distor- 
tion and  misstating,  the  recent  badly-de- 
cided New  York  cases  are  made  to  rest. 


72  COMMENTARIES   ON   SALES.  [BOOK   III. 

required  a  second  argument  before  they  could  agree  on  the  judg- 
ment, by  even  a  divided  court,  which  they  did  deliver.  And  the 
very  ground  upon  which  they  did  decide  the  case,  according  to 
their  own  showing,  in  the  subsequent  case  of  Stainer  v.  Tysen,^ 
is  conclusive  to  show  that  the  case,  even  before  it  was  overruled 
by  the  Court  of  Errors,  was  no  authority  whatever  for  Armour  v. 
Michigan  Central  R.  R.  Co.^ 

In  this  latter  case,  the  power  of  the  master,  or  railway  station 
agent,  with  reference  to  bills  of  lading  and  freight  receipts,  is  a 
special  one,  limited  and  qualified  by  the  fact  that  he  has  no 
power  to  sign  them  except  on  receipt  of  the  goods.  While,  in 
the  exceptional  matter  of  negotiable  paper,  as  was  the  case  in 
North  River  Bank  v.  Aymar,^  the  principal  had  "  authorized 
another  in  general  words  and  without  any  qualification  to  give  his 
notes." 

Cowen,  J.,  who  delivered  the  judgment  of  himself  and  Bronson, 
J.,  in  North  River  Bank  v.  Ay  mar,  says  of  that  case,  in  Stainer  v. 
Tysen  *  :  "  The  argument  by  which  those  who  advance  money  or 
discharge  debts  on  the  faith  of  paper  executed  under  letters  of 
attorney  like  this,  claim  that  the  principal  should  be  bound  at  all 
events,  is,  that  he  has  authorized  another  in  general  words  and 
without  any  qualification  to  give  his  notes.  That  having  given 
such  authority,  he  cannot  require  any  person  who  takes  under  it 
to  notice  and  decide  at  his  peril  whether  the  agent  acts  in  good 
faith  towards  his  principal  or  not.  That  he  has  virtually  author- 
ized his  agent  to  speak  conclusively  and  by  way  of  estoppel  as  to 
all  extrinsic  circumstances,  —  all  facts  not  apparent  on  the  face  of 
the  power,  or  actually  known  to  the  man  who  trusts  to  it.  That 
the  attorney,  by  the  very  act  of  making  the  note,  &c.,  does,  in 
effect,  declare  that  it  is  available.  Some  of  us  felt  so  much 
difficulty  upon  this  argument  in  the  North  River  Bank  v.  Aymar, 
that  we  held  the  question  under  advisement  and  directed  a  second 
discussion,  which  took  place  in  the  course  of  the  same  term  at 
which  the  present  case  was  argued.  The  answer  given  to  the 
argument  is,  that  such  letters  of  attorney  import,  in  their  own 
nature,  an  obligation  to  act  for  and  in  behalf  of  the  principal  and 
in  his  proper  business  ;  that  the  man  who  receives  the  note  is 
bound  to  look  to  the  power,  and  in  so  doing  must  take  notice  of 
its  legal  effect  at  his  peril ;  that  he  is  therefore  bound  to  see 
that  the  attorney  does  not  go  beyond  his  power  by  making  or 
indorsing  notes  for  the  benefit  of  himself  or  persons  other  than 
his  principal." 

i  3  Hill,  279  et  seq.  »  3  Hill,  262. 

2  65  N.  Y.  111.  *  3  Hill,  280,  281. 


PART  I.]  RAILWAYS.  73 

As  the  shipmaster  is  not  authorized  "  m  general  words  mid 
without  any  qualification  "  to  sign  bills  of  lading ;  and  as  the  fact 
is  "  apparent  on  the  face  of  his  power  "  that  he  is  not  authorized 
to  sign  bills  of  lading  without  receipt  of  the  goods  ;  the  ratio 
decidendi  of  North  River  Bank  v.  Aymar  itself,  is,  as  explained 
by  the  same  court,  and  by  the  same  judge  who  delivered  the 
judgment,  in  Stainer  v.  Tysen,i  that  the  party  taking  such  bills  of 
lading,  as  consignee,  or  indorsee,  "  must  fake  notice  of  the  legal 
effect "  of  the  power  "  at  his  peril ;  "  and,  therefore,  in  principle, 
North  River  Bank  v.  Aymar ,2  instead  of  being  an  authority  in 
favor  of  Armour  v.  Michigan  Central  R.  R.  Co.,^  is  actually  an 
authority  against  it. 

It  is  thus  obvious  why  the  counsel  in  North  River  Bank  v. 
Aymar,*  stated  his  proposition  in  the  self-evident  manner  in 
which  he  did,  and  in  a  manner  radically  different  from  the  way 
in  which  it  has  since  been  misundersteod,  misstated,  and  dis- 
torted. Because,  in  that  case,  the  power  was  actually  geiieral  and 
without  limitation  or  qualification  in  the  power  itself,  to  sign  notes 
in  the  name  of  the  principal  ;  entirely  unlike  the  case  of  a  ship- 
master acting,  in  signing  bills  of  lading,  under  special,  limited, 
qualified  power.  It  therefore  suited  counsel's  purpose  in  North 
River  Bank  v.  Aymar ,^  to  say  almost  literally,  "  If  the  agent  has 
the  power,  he  has  the  power,"  or,  really  literally,  "  If  the  very  act 
done  is  within  the  very  terms  of  the  power,  then  the  principal  is 
bound." 

The  ultimate  outcome  of  this  grossly  distorted  rule,  in  65  N.  Y. 
and  33  Hun,  is  as  opposite  to  the  rule  as  originally  stated,  as  the 
antipodes  are  to  each  other ;  and,  as  far  as  Armour  v.  Michigan 
Central  R.  R.  Co.^  rests  on  the  authority  of  that  rule ;  and,  mis- 
understanding, misstating,  and  misconstruing  it,  it  does  so  com- 
pletely ;  that  case,  and  the  few  other  cases  which  have  followed 
it,  are  thus  shown  to  have  been  decided  absolutely  without  even 
the  semblance  of  authority. 

After  this  expose  it  will  not  be  surprising  to  find  Story,  without 
having  been  aware  that  the  judgment  had  been  reversed,  actually 
citing  North  River  Bank  v.  Aymar,'  as  he  he  does,  not  for  any 
such  proposition  as  is  contained  in  Armour  v.  Michigan  Central 
R.  R.  Co.,^  but  really  for  this :  — 

"  An  agent,  who  is  authorized  to  draw  and  indorse  notes,  and 
to  draw,  indorse,   and  accept  bills  of  exchange,  can  act  under 

1  3  Hill,  280  et  seq.  ^  3  Hill,  202. 

2  3  Hill,  262.  6  65  n.  Y.  111. 
8  65  N.  Y.  111.  7  3  Hill,  2G2. 

*  3  Hill,  262.  8  65  n.  Y.  111. 


74  COMMENTARIES   ON   SALES.  [BOOK   III. 

such  authority  only  to  the  extent  of  his  principal's  business"  &c. ;  ^ 
evidently  not  for  one  moment  fancying  that  that  case  was  in- 
tended in  effect  to  overrule  and  reverse  the  whole  mass  of  the  law 
in  Chapter  6  of  his  work  on  Agency,  on  the  Nature  and  Extent 
of  the  Agent's  Authority,  and  to  unsettle  and  destroy  the  great 
mass  of  the  well-established  principles  of  law,  which,  growing 
with  the  common  law  itself,  have  grown  up  and  become  that 
which  we  recognize  and  know  as  the  Law  of  Agency. 

^  Story  on  Agency,  9th  ed.  §  69. 


A 


PART  II.J   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      75 


BOOK    III. 

PART   II. 
RAILWAY  CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS. 

Closely  connected  with  the  subject  of  Sales  is  that  of  the  for- 
warding of  the  goods  sold  and  bought.  Indeed,  the  forwarding  of 
the  goods  is  very  frequently  made  an  essential  part  of  their  pur- 
chase, as  the  express  condition  on  which  the  goods  are  bought. 
As  we  have  intimated  in  the  concluding  note  to  Volume  I.  of  this 
work,  the  decisions  in  this  country  as  a  whole,  upon  the  question 
of  the  liability  of  railroad  companies  and  other  common  carriers, 
for  the  transportation  of  goods  received  by  them,  to  be  conveyed 
over  an  entire  route,  of  which  the  receiving  carrier  directly  con- 
trols but  one  link  of  the  entire  chain  of  route,  are  in  a  most  un- 
satisfactory state. ^ 

The  law  as  established  in  England  on  the  question,  as  we 
shall  clearly  show,  notwithstanding  the  statements  to  the  contrary 
by  some  of  the  text-writers  and  by  many  of  the  courts  in  this 
country,  is  perfectly  sound,  and  the  decisions  there  uniform  and 
thoroughly  consistent.  In  this  country,  however,  the  state  of  facts 
in  the  matter  is,  we  think,  directly  and  sadly  otherwise.  We  trust 
to  make  the  law  in  the  matter  perfectly  clear,  removing,  in  a  full 
investigation  of  the  cases  decided  in  England  and  in  this  country, 
all  the  doubt  and  uncertainty  which  vicious  decisions  and  per- 
verted interpretation  have  thrown  about  the  subject. 

Where  the  carrier  enters  into  an  express  contract  for  the  car- 
riage of  goods,  it  is  clear  that,  whether  in  England  or  in  this  coun- 
try, the  extent  of  his  liability,  where  a  loss  takes  place  on  a 
portion  of  tlie  route  not  under  the  carrier's  immediate  control, 
depends  on  the  nature  of  his  contract  rather  than  on  any  general 

1  Our  intention,  when  commencing  the  unsatisfactory    position    in    this  country, 

discussion  of  this  subject,  was  to  make  it  fully  justifying  us  in  doing  so.     We  trust 

a  note  to  Volume  I.  p.  658  ;    but  in  our  that   with  this,  as  with  the  many  other 

thorough   discussion   of    the    subject    we  conflicting  questions  of  law  we  have  in- 

were  carried  to  such  length  that  we  de-  vestigated  in  this  work,  it  will  be  found 

cided  to  make  it  a  separate  Part ;  the  im-  that   we  have    reached  a   sound  and  uu- 

portance  of  the  question  involved,  and  its  answerable  conclusion. 


76  COMMENTARIES   ON   SALES.  [BOOK   III. 

principle  that  he  is,  or  is  not,  liable,  independent  of  the  terms  of 
his  contract.  For  instance,  if  a  carter  take  goods  from  a  ware- 
house under  a  contract  to  deliver  them  to  a  ship  or  a  railway,  his 
contract  is  executed  when  he  delivers  the  goods  to  the  con- 
tract destination,  the  ship  or  railway.  But  if  a  carter  take  goods 
under  a  contract  to  deliver  them  to  a  distant  place,  the  contract 
destination  is  that  distant  place,  even  though  he  may  himself  con- 
vey them  over  only  a  portion  of  the  route.  In  the  large  majority 
of  such  cases  it  is  a  question,  whether  in  England  or  in  this  coun- 
try, as  to  what  is  the  proper  construction  of  the  carrier's  contract. 
In  great  numbers  of  such  cases  the  goods  are  carried  under  con- 
tracts the  terms  of  which  are  clearly  expressed,  and  where  the 
construction  should  be  precisely  the  same  whether  the  question 
arises  here  or  in  England.  The  liability  of  the  carrier,  we  take 
it,  in  such  cases,  is  simply  that  of  contract,  and  where  the  terms 
of  the  contract  are  not  expressed,  and  the  contract  has  to  be  es- 
tablished by  evidence  from  which  the  nature  of  the  contract  has 
to  be  deduced  or  implied,  it  is  obvious  that  very  slight  circum- 
stances necessarily  have  great  weight  in  governing  courts  in  their 
decisions  as  to  what  the  contract  is.  The  liability  being  simply 
that  of  contract,  the  contract  being  shown  will  govern  the  parti- 
cular case,  and  we  see  no  reason,  on  principle,  why  the  construc- 
tion of  any  particular  contract  should  be  different  here  from  what 
it  would  be  in  England,  or  in  one  State  from  what  it  would  be  in 
another.     We  examine  some  of  the  authorities. 

Upton  V.  Clark  ^  was  an  action  against  the  defendant  as  a  com- 
mon carrier.  It  appeared  that  the  defendant  kept  a  booking  office, 
at  which  parcels  were  booked  for  a  considerable  number  of  coaches 
and  wagons,  and  that  the  box  for  which  the  action  was  brought 
was  booked  there.  The  words,  "  conveyances  to  all  parts  of  the 
world,"  were  on  a  board  at  the  side  of  the  door  of  the  defendant's 
office,  with  a  list  of  places,  including  Windsor.  The  box  was 
booked  for  Windsor,  and  was  delivered  by  the  defendant  to  a 
Windsor  carrier,  but  never  reached  there.  On  this  evidence,  Lord 
Tenterden  held  that  the  defendant  was  not  liable ;  the  contract 
with  the  keeper  of  a  booking  office  not  implying  that  he  assumed 
the  responsibility  of  the  carrier. 

This  case  was  affirmed  in  Gilbert  v.  Dale,^  Coleridge,  J.,  there 
saying :  "  In  the  case  of  a  carrier,  the  law  presumes  that  he  will 
do  his  duty  ;  and  a  plaintiff  who  charges  him  with  the  breach  of 
it,  must  give  some  evidence  of  non-performance.  The  fact  that 
the  goods  have  not  reached  the  consignee  is  such  evidence  against 
the  carrier,  and  calls  upon  him  to  discharge  by  other  proof.  So 
1  2  C.  &  P.  598.  8  5  A.  &  E.  543. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.       77 

ill  the  case  of  the  keeper  of  a  booking  office  ;  to  call  on  him  for 
an  answer  to  such  a  cliarge  as  the  present,  some  evidence  must  be 
given  of  the  non-performance  of  his  undertaking  ;  but  that  is  not 
done  by  merely  showing  non-delivery  of  the  goods  to  the  con- 
signee. Suppose  goods  were  left  with  a  cannier  to  be  taken  by  him 
to  York,  and  from  thence  forwarded  to  Edinburgh,  looidd  it  be  suf- 
ficient, in  an  action  against  him  for  negligence,  to  shoiv  that  the 
goods  did  not  reach  Edinburgh  ?  " 

So,  in  Syms  v.  Chaplin,^  as  to  the  persons  contracting,  the  evi- 
dence showed  that  the  first  receiver  of  the  goods  did  not  contract 
to  carry  them  to  London,  but  only  to  carry  them  to  Meeksham  to 
be  conveyed  or  forwarded  to  London,  and  it  was  held  that  his 
responsibility  ceased  on  delivering  the  goods  at  Meeksham,  and 
that  the  carrier  from  Meeksham  to  London,  to  whom  the  goods 
were  delivered  at  Meeksham,  was  the  party  responsible  to  the 
owner  for  their  loss.  And  in  Gurside  v.  The  Trent  Navigation 
Co.,2  where  the  defendants'  contract  was  to  carry  goods  from 
Stourport  to  Manchester,  to  be  thence  forwarded  to  Stockport, 
and  the  goods  were  destroyed  by  an  accidental  fire  in  a  warehouse 
at  Manchester  before  they  had  an  opportunity  to  forward  them  to 
Stockport,  they  were  held  not  liable,  as  they  were  then  holding  as 
warehousemen,  and  not  as  carriers. 

The  question  came  up  in  Hyde  v.  The  Trent  &  Mersey  Navi- 
gation Co.,^  where  the  receiving  carrier  contracted  to  carry  goods 
to  Manchester,  and  they  were  destroyed  by  fire  at  Manchester  ; 
the  question  being  whether  the  carrier  was  liable  for  their  non- 
delivery at  the  residence  of  the  consignee  in  Manchester.  The 
carriers  having  included  in  their  freight  a  charge  for  cartage,  they 
were  held  liable  for  the  loss,  caused  by  the  act  of  a  connecting 
carter.  The  matter  was  considered  by  all  the  judges  as  to  whether 
such  a  liability  would  have  otherwise  existed,  with  reference  to 
which  they  were  undecided,  but  they  all  held  that  the  charge  for 
cartage  was  decisive  to  show  that  the  liability  of  the  defendants 
continued  until  the  goods  were  delivered.  The  case  is  an  instruc- 
tive one  and,  on  this  point,  is  quite  in  harmony  with  Muschamp 
V.  Lancaster  Railway  Co.,*  and  the  later  English  cases.  The  fol- 
lowing, as  applicable  to  some  of  the  decisions  in  this  country,  from 
Grose,  J.,  in  Hyde  v.  The  Trent  &  Mersey  Navigation  Co.,^is  note- 
worthy :  "  Whether  it  be  or  be  not  a  delivery  may  depend  on  the 
general  custom  of  the  trade,  or  the  particular  usage  which  has  pre- 
vailed between  the  parties   themselves."     But   in  Fowles   v.  The 

1  5  A.  &  E.  634,  643.  <  8  M.  &  W.  421. 

2  4T.  K.  581.  65  X.  R.  399. 

3  5  T.  K.  389. 


78  COMMENTARIES   ON   SALES.  [bOOK   III. 

Great  Western  Railway  Co.,^  although  the  receiving  railway  made 
one  entire  charge  for  conveying  goods  as  well  by  their  own  rail- 
way as  by  connecting  carriers,  they  were  held  not  liable  for  a  loss 
caused  by  a  connecting  carrier,  having  specially  by  a  clause  in 
their  contract  exerapted  themselves  from  such  liability. 

So  in  Muschamp  v.  Lancaster  Railway  Co. ,2  which  has  become 
the  great  leading  case  on  the  question,  the  matter  is  put  simply 
as  one  of  contract.  There,  a  parcel  was  delivered  at  Lancaster, 
to  the  Lancaster  Railway  Co.,  directed  to  a  person  at  a  place  in 
Derbyshire.  The  person  who  brought  it  to  the  station  offered  to 
pay  the  carriage,  but  the  book-keeper  said  it  had  better  be  paid  by 
the  person  to  whom  it  was  directed,  on  the  receipt  of  it.  The 
Lancaster  company  were  known  to  be  proprietors  of  the  line  only 
as  far  as  Preston,  where  the  railway  unites  with  the  North  Union 
Line,  and  that  afterwards  with  another,  and  so  on  into  Derbyshire. 
The  parcel  was  lost  after  it  was  forwarded  from  Preston.  The 
judge  (Rolfe,  B.)  directed  the  jury  that  when  a  common  carrier 
takes  into  his  care  a  parcel  directed  to  a  particular  place,  and 
does  not  by  positive  agreement  limit  his  responsibility  to  a  part 
only  of  the  distance,  that  is  prinid  facie  evidence  of  an  undertak- 
ing on  his  part  to  carry  the  parcel  to  the  place  to  which  it  is  di- 
rected ;  and  that  the  same  rule  applied,  although  that  place  were 
beyond  the  limits  within  which  he  in  general  professed  to  carry  on 
his  trade  of  a  carrier.  This  direction,  about  the  correctness  of 
which  we  should  think  there  could  scarcely  be  a  question,  was  un- 
animously sustained  by  the  full  court.^ 

1  7  Ex.  699.  kind  of  contract.     It  is  in  substance  giv- 

2  8  M.  &  W.  421.  ing  to  the  carriers  a  general  power  along 

3  Lord  Chief  Baron  Abinger  thus  dealt  the  whole  line  of  route  to  make  at  their 
with  the  matter:  "The  simple  question  pleasure  fresh  contracts,  which  shall  be 
in  this  case  is,  whether  the  learned  judge  binding  upon  the  principal  who  employed 
misdirected  the  jury  in  telling  them  that,  them.  But  if,  as  it  is  admitted  on  both 
if  the  case  were  stripped  of  all  other  cir-  sides,  it  is  clear  that  something  more  was 
cumstances  beyond  the  mere  fact  of  knowl-  meant  to  be  done  by  the  defendants  than 
edge  by  the  party  that  the  defendants  carrying  as  far  as  Preston,  is  it  not  for  the 
were  carriers  only  from  Lancaster  to  Pres-  jury  to  say  what  is  the  contract,  and  how 
ton,  and  if,  under  such  circumstances,  they  mii^h  more  was  undertaken  to  be  done  by 
accepted  a  parcel  to  be  carried  on  to  a  more  theTn  ?  Now,  it  certainly  might  be  true 
distant  place,  they  were  liable  for  the  loss  that  the  contract  between  these  parties  was 
of  it,  this  being  evidence  whence  the  jury  such  as  that  suggested  by  tlie  counsel  for  the 
might  infer  that  they  undertook  to  carry  defendants ;  but  other  views  of  the  case 
it  in  safety  to  that  place.  I  think  that  in  may  be  suggested  quite  as  probable  ;  such, 
this  proposition  there  was  no  misdirection,  for  instance,  as  that  these  railway  com- 
It  is  admitted  by  the  defendants'  counsel  panies,  though  separate  in  themselves,  are 
that  the  defendants  contract  to  do  some-  in  the  habit,  for  their  own  advantage,  of 
thing  more  with  the  parcel  than  merely  making  contracts,  of  which  this  was  one, 
carry  it  to  Preston.  They  say  the  engage-  to  convej-  goods  along  the  whole  line  to 
ment  is  to  carry  to  Preston,  and  there  to  the  ultimate  terminus,  each  of  them  Iwing 
deliver  it  to  an  agent,  who  is  to  carry  it  agents  of  the  ©ther  to  carry  them  forward, 
farther,  who  is  afterwards  to  be  replaced  and  each  receiving  their  share  of  the  prof- 
by  another,  and  so  on  until  the  end  of  the  its  from  the  last.  Tiie  fact  that,  accord- 
journey.      Now,  that  is  a  very  elaborate  ing  to  the  agreement  proved,  the  carriage 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS. 


79 


Muschamp  v.  Lancaster  Ry.  Co.^  was  affirmed  in  the  Queen's 
Bench,  in  Watson  v.  The  Ambergate  Ry.  Co.  ^  where  the  com- 
pany was  held  liable  for  damages  caused  by  delay  in  forwardhig  a 
model  which  was  to  compete  for  a  prize,  although  the  delay  was 
not  caused  by  the  receiving  and  contracting  railway,  but  by  a 
connecting  railway.  Patteson,  J.,  said :  "  If  carriers  receive  a 
package  to  carry  it  to  a  particular  place,  whether  they  themselves 
carry  it  all  the  way  or  not,  they  must  be  said  to  have  the  convey- 
ing of  it  to  the  end  of  the  journey,  and  the  other  parties  to  whom 
they  may  hand  it  over  are  their  agents.  We  must  adhere  to  this 
principle,  and  the  company  are  clearly  liable,  unless  the  facts 
show  that  their  responsibility  has  determined."  The  question  was 
similarly  decided  in  Scothorn  v.  South  Staffordshire  Ry.  Co,,^  and 
on  the  same  ground  as  in  the  previous  cases,  namely,  that  it  was 
a  matter  of  contract.     The  plaintiff  delivered  at  the  company's 


was  to  be  paid  at  the  end  of  the  journey, 
rather  confirms  the  notion  that  the  per- 
sons who  were  to  carry  the  goods  from 
Preston  to  their  final  destination  were 
under  the  control  of  the  defendants,  who 
consequently  exercised  some  influence  and 
agency  beyond  the  immediate  terminus  of 
their  own  railway.  Is  it  not,  then,  a  ques- 
tion for  the  jury  to  say  what  the  nature  of 
this  contract  tvas  ?  and  is  it  not  as  reason- 
able an  inference  for  them  to  draw,  that 
the  whole  was  one  contract  as  the  con- 
trary ?  I  hardly  think  they  would  be 
likely  to  infer  so  elaborate  a  contract  as 
that  which  the  defendants'  counsel  sug- 
gest, namely,  that  as  the  line  of  the  de- 
fendants' railway  terminates  at  Preston,  it 
is  to  be  presumed  that  the  plaintiff,  who 
intrusted  the  goods  to  them,  made  it  a 
part  of  his  bargain  that  they  should  em- 
ploy for  him  a  fresh  agent  both  at  that 
place  and  at  every  subsequent  change  of 
railway  or  conveyance,  and  on  each  shift- 
ing of  the  goods  give  such  a  document  to 
the  new  agent  as  should  render  him  re- 
sponsible. Suppose  the  owner  of  goods 
sent  under  such  circumstances,  when  he 
finds  they  do  not  come  to  hand,  comes  to 
the  railway  office  and  makes  a  complaint, 
then,  if  the  defendants'  argument  in  this 
case  be  well  founded,  unless  the  railway 
company  refuse  to  supply  him  witli  the 
name  of  the  new  agent,  they  break  their 
contract.  It  is  true  that,  practically,  it 
might  make  no  great  difference  to  the 
proprietor  of  the  goods  which  was  the  real 
contract,  if  their  not  immediately  furnish- 
ing him  with  the  name  would  entitle  him 
to  bring  an  action  against  thAm.  But  the 
question  is,  wliy  should  the  jury  infer  one 
of  these  contracts  rather  than  the  other  ? 
Which  of  the  two  is  the  more  natural, 


the  more  usual,  the  more  probable  ?  Be- 
sides, the  carriage  money  being  in  this  case 
one  undivided  sum,  rather  supports  tfie 
inference,  that  although  these  carriers 
carry  only  a  certain  distance  with  their 
own  vehicles,  they  make  subordinate  con- 
tracts with  the  other  carriers,  and  are 
partners  inter  se  as  to  the  carriage-money, 
—  a  fact  of  which  the  owner  of  the  goods 
could  know  nothing,  as  he  only  pays  the 
one  entire  sum  at  the  end  of  the  journey, 
which  they  afterwards  divide  as  they 
please.  Not  only,  therefore,  is  there  some 
evidence  of  this  being  the  nature  of  the 
contract,  but  it  is  the  most  likelj^  con- 
tract under  the  circumstances ;  for  it  is 
admitted  that  the  defendants  undertook 
to  do  more  than  simply  to  carry  the  goods 
from  Lancaster  to  Preston.  The  whole 
matter  is  therefore  a  question  for  the  jury 
to  determine  what  the  contract  was  on  the 
evidence  before  them.  ...  In  cases  like  the 
present,  particular  circumstances  might  no 
doubt  be  adduced  to  rebut  the  inference 
which,  primd  facie,  must  be  made,  of  the 
defendants  having  undertaken  to  carry  the 
goods  the  whole  way.  The  taking  charge 
of  the  parcel  is  not  put  as  conclusive  evi- 
dence of  the  contract  sued  on  by  the  plain- 
tiff; it  is  only  prima  facie  evidence  of  it ; 
and  it  is  useful  and  reasonable  for  the 
benefit  of  the  public  that  it  should  be  so 
considered.  It  is  better  that  those  who 
undertake  the  carriage  of  parcels,  for  their 
mutual  benefit,  should  arrange  matters  of 
this  kind  inter  se,  and  should  be  taken 
each  to  have  made  the  others  their  agents 
to  carry  forward." 

1  8  M.  &  W.  421. 

2  15  Jur.  448. 

3  8  Ex.  341. 


80  COMMENTARIES   ON    SALES.  [bOOK   III. 

station  in  Staffordshire  certain  goods  addressed  "  to  the  East 
India  Docks,  London,"  and  paid  one  sum  for  their  carriage  the 
whole  distance.  By  the  practice  of  the  company  all  goods  deliv- 
ered at  that  station  for  London  are  forwarded  on  their  own  line 
to  Birmingham,  and  from  thence  by  the  London  &  North-West- 
ern  Railway.  Before  the  goods  in  question  arrived  in  London, 
the  plaintiff  directed  a  clerk  at  the  London  station  of  the  latter 
company  to  forward  them  to  another  place,  which  the  clerk  prom- 
ised to  do.  The  goods  were,  however,  delivered  according  to  the 
original  address,  and  were  thereby  lost.  The  Court  of  Exchequer 
held,  unanimously,  that  the  South  Staffordshire  Railway  Company 
were  liable  for  the  loss.^ 

The  same  principle  was  acted  on  by  the  Court  of  Common 
Pleas,  in  Crouch  v.  London  &  North  Western  Ry.  Co.,^  where  it 
was  held, 3  that  there  can  be  no  reason  why  one  company  should 
not  be  common  carriers  upon  the  line  of  another  company. 
Whether  they  are  or  not  is  clearly  a  matter  of  contract ;  or  which 
amounts  to  the  same  thing,  as  in  this  case,  where  they  hold  them- 
selves out  as  such  common  carriers  over  another  line.  Thus,  in 
this  case,  it  was  held,  that  a  railway  which  holds  itself  out  as  a 
carrier  of  goods  between  two  places,  one  of  which  is  beyond  the 
confines  of  England,  is  still  subject  to  the  common-law  liability 
of  a  carrier  for  hire,  and.  is  bound  to  accept  all  goods  which  are 
reasonably  tendered  to  it  for  conveyance  between  those  limits, 
even  though  its  line  extends  only  a  part  of  the  distance  between 
such  limits,  connection  being  made  at  an  intermediate  point  with 
another  railway. 

Wilby  V.  The  West  Cornwall  Ry.  Co.,*  where  a  part  of  the  car- 
riage was  by  water,  by  steamboat,  is  to  the  same  effect ;  the  con- 
tract with  the  railway  company  being  held  to  have  covered  the 
entire  distance.^ 

1  Alderson,  B.,  said:  "There  can  be  tention,  communicated  it  to  the  defend- 
no  doubt  that  the  defendants  made  a  con-  ants'  agent,  who  was  authorized  to  deliver 
tract  to  carry  the  plaintiffs'  goods  the  the  goods  according  to  the  original  con- 
whole  distance  to  London,  for  certain  re-  tract,  and  desired  him  not  to  send  them 
ward  for  the  entire  journey;  and  there  is  according  to  the  direction  upon  the  pack- 
also  no  doubt  that  they  would  have  been  ages,  but  elsewhere.  By  some  negligence 
liable  for  loss  through  their  negligence  in  tliat  order  was  disobeyed,  and  the  goods 
carrying  during  any  part  of  that  journey,  are  lost.  Then  it  is  said  that  the  defend- 
Then,  the  question  arises,  what  was  the  ants  have  performed  their  contract ;  but 
contract  between  the  parties  ?  It  really  that  is  not  so.  .  Their  contract  was  to  pro- 
amounts  to  no  more  than  a  question  of  cure  their  agent  to  deliver  according  to 
fact;  and  there  is  abundant  evidence  of  a  the  plaintiffs'  directions.  That  they  have 
contract  to  deliver,  as  stated  in  the  decla-  not  done,  and  have  in  consequence  occa- 
ration,  according  to  the  plaintiffs'  direc-  sioned  a  loss  which  they  are  bound  to 
tions,  in  London.  It  is  true  that  origin-  make  good." 
ally,  when  the  goods  were  placed  in  the  '-  14  C.  B.  255. 
defendants'  possession,  the  direction  given  ^  ggy  p  279,  per  Jervis,  C.  J. 
by  the  plaintiffs  was  to  put  them  on  board           ^  2  H.  &  N.  703. 

The  Melbourne,  at  the  East  India  Docks ;  5  And  see  Machu  v.  The  Southwestern 

but  the  plaintiffs,  having  altered  their  in-  Ry.  Co.,  2  Ex.  415.     Crouch  v.  The  Great 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.       81 

The  decision  in  Bristol  &  Exeter  Ry.  Co.  v.  Collins,'  is,  we 
think,  as  far  as  regards  the  construction  in  the  House  of  Lords 
of  the  condition  embodied  in  the  railway  contract,  a  most  unsat- 
isfactory one.  Where  the  contract  was,  as  in  this  case,  in  effect, 
that  the  company  was  not  to  be  liable  "  beyond  the  extent  of  their 
own  railway,'^  it  is  difficult  to  understand  how  this  language  could 
be  so  misconstrued,  as  to  treat  it  as  a  declaration  that  they  would 
be  liable  "  beyond  the  extent  of  their  own  railway,"  for  the  loss, 
damage,  or  detention,  caused  by  another  railway  "  beyond  the  ex- 
tent of  their  own  railway"  but  connected  with  it.  It  is  obvious 
that  two  —  Lord  Wensleydale  and  Lord  Kingsdown  —  of  the 
four  Law  Lords  who  decided  the  case  (thus  reversing  the  unani- 
mous decision  of  the  Exchequer  Chamber,  and  holding  contra  to 
the  opinion  of  the  majority  of  the  judges  before  them,  Byles, 
Crompton,  Williams,  and  Wightman,  J3.  ;  Watson  and  Martin, 
BB.,  only,  differing),  were  very  doubtful  about  the  correctness  of 
the  decision.  It  was,  in  fact,  admitted  by  Lord  Wensleydale, 
that,  by  the  condition  it  might,  indeed,  "  have  been  the  intention" 
of  the  railway  company  "  to  contract  to  carry  along  its  line  only ; " 
that  he  had  considerable  difficulty  in  making  up  his  mind  upon 
it ;  but  that,  on  the  whole,  though  he  had  considerable  doubt  in 
the  course  of  the  proceeding,  he  agreed  with  the  opinion  of  the 
minority  of  the  judges  before  them.  Lord  Kingsdown,  too,  looked 
"  upon  the  case  as  one  of  doubt,"  but  was  not  prepared  to  dissent 
from  the  decision.  We  think  that  the  decision  of  the  Exchequer 
Chamber  is  right,  and  that  that  of  the  House  of  Lords  is  wrong. 
But  as  far  as  it  affects  the  question  we  are  examining,  the  deci- 
sion is  entirely  governed  by  the  language  in  the  condition  ;  and, 
whether  right  or  wrong,  simply  depends  upon  the  question  whether 
the  construction  placed  on  the  contract  is  correct  or  not,  and  not 
as  to  the  principle  involved  with  reference  to  the  general  liability 
of  a  railroad  company  in  contracting  to  carry  goods  beyond  the 
limits  of  their  own  railroad. 

We  think  that,  where  an  apparent  difficulty  on  this  point  exists, 
it  will  be  found  to  arise  on  some  question  relating  to  the  construc- 
tion of  the  contract.  Thus,  it  will  be  seen,  that  in  all  of  the 
English  cases  which  we  have  examined,  in  each  case  the  question 
has  arisen  as  to  what,  under  the  facts  of  the  case,  the  particular 
contract  was  ;  and,  as  we  have  seen,  in  those  differing  facts,  it  has 
sometimes  been  held  that  the  first  receivers  of  the  goods  were 

Wpstom  Ry.  Co.,  2  H.  &  N.  401,  follows  the  law  as  decided  in  Muscliamp  v.  The 

and  approves  Scotliorn  v.  The  Soutli  Staf-  Lancaster  Ky.,  8  M.  &  \V.  421. 
fordshire  Ry.  Co.,  8  Ex.  341.     Braniwell,  i  7  H.  L.  Cas.  194. 

B.,  dissents  ;  but  he  expressly  agi-ees  with 

VOL.   II.  6 


82 


COMMENTARIES   ON   SALES. 


[book  III. 


contracting  with  reference  to  the  entire  route,  and  in  others,  that 
they  were  not  so. 

With  the  exception  of  the  decision  of  the  House  of  Lords  in 
Bristol  and  Exeter  Ry.  v.  Collins,^  which  was  an  extremely  doubt- 
ful construction,  simply,  of  the  condition  in  a  contract,  we  think 
every  case  on  the  point  which  we  have  so  far  examined,  should 
be  concurred  in  by  any  court  administering  the  principles  of  the 
common  law. 

The  general  law,  equally  applicable  to  this  country  as  to  Eng- 
land, is  well  stated  by  Crompton,  J.,  with  whom,  both  in  deliver- 
ing the  unanimous  judgment  of  the  Exchequer  Chamber,^  and  in 
answering  the  questions  put  to  the  judges  by  the  House  of  Lords, 
we  entirely  concur.^ 


1  7  H.  L.  Cas.  194. 

2  Collins  V.  The  Bristol  &  Exeter  Ry. 
Co.,  1  H.  &  N.  517;  26  L.  J.  n.  s.  Ex. 
103. 

^  As  it  has  been  repeatedly  stated  by 
courts  and  text-writers  in  this  country 
that  there  is  a  radical  difference  as  to  the 
settled  law  in  England  and  in  this  country 
generally  in  the  matter,  we  quote  from  the 
opinion  of  Crompton,  J.,  in  Bristol  &  Ex- 
eter Ry.  Co.  0.  Collins,  7  H.  L.  Cas.  211 
et  seq.,  what  we  think  is  an  accurate  state- 
ment of  the  law  equally  applicable  to  both 
countries :  "It  may  be  remarked  that 
since  the  great  improvements  which  have 
taken  place  in  modern  times  in  the  trans- 
mission of  goods  along  a  line  where  there 
may  be  two  or  three  or  more  distinct  car- 
riers or  carrying  companies,  the  contracts 
which  have  been  made  by  the  carrier  who 
first  receives  the  goods  have  been  of  three 
descri[itions.  The  first  is  whei'c  the  car- 
rier receives  the  goods  to  carry  from  A.  to 
B.,  and  where  having  so  received  the  goods 
to  be  carried  he  is  bound  to  carry  them  by 
himself  or  his  agents.  If  he  contracts 
with  another  company  to  carry  them  be- 
yond the  place  where  his  own  means  of 
carriage  extends,  he  is  answerable  as  a 
common  carrier  just  as  much  as  if  he  had 
carried  them  in  his  own  carts  or  vans,  in 
his  own  ship,  or  on  his  own  railway.  It 
is  nothing  to  the  parties  sending  the  goods 
in  what  way  he  performs  his  undertaking 
for  the  care  and  carriage  of  the  goods. 
This  is  the  common  case  where  goods,  par- 
eels,  or  passengers  are  booked  at  a  railway 
station  as  from  A.  to  B.  When  the  facts 
are  ascertained  there  is  no  difficulty  as  to 
the  law,  and  nothing  could  be  further,  I 
believe,  from  the  minds  of  any  of  the 
judges  who  decided  the  present  case  in 
the  Exchequer  Chamber  than  to  entertain 
any  doubt  of  the  principle  upon  which 
Muschamp  j;.  The  Lancaster  Ry.  Co.,  8  M, 


&  W.  421,  and  other  cases  of  that  descrip- 
tion were  decided,  and  which  is  acted  upon 
by  judges  and  juries  without  any  doubt  at 
almost  every  sitting  and  assize.  Compan- 
ies not  liking  such  liabilities  for  loss  and 
accidents,  where  they  have  no  control  be- 
yond their  own  line  of  railway  or  their 
own  carriage,  frequently  adopt  a  different 
mode  of  contracting,  and  absolutely  refuse 
to  book  beyond  their  own  line.  In  such 
second  case  there  may  be  considerable  in- 
convenience to  the  public.  It  may  be  ^a 
great  annoyance  for  passengers  to  rebook 
on  entering  on  a  new  line  ;  and  the  owner 
of  goods  might  find  it  almost  impossible, 
or  expensive,  to  meet  his  goods  or  send  to 
meet  them  for  the  purpose  of  transferring 
them  from  one  line  to  another,  or  from  a 
line  of  canal  or  railway  to  vans,  boats,  or 
carriages  of  other  carriers.  The  carrier  re- 
ceiving the  goods  may,  therefore,  for  the 
convenience  of  the  public  or  his  custom- 
ers, adopt  a  third  species  of  contract.  He 
may  say  :  '  We  do  not  choose  to  undertake 
responsibilities  for  negligence  and  acci- 
dents beyond  our  limits  of  carriage,  where 
we  have  no  means  of  preventing  such  neg- 
ligence or  accident;  and  we  will  not,  there- 
fore, undertake  the  carriage  of  your  goods 
from  A.  to  B. ;  but  we  will  be  carriers  no 
farther  ;  but  to  protect  you  against  the 
inconveniences  and  trouble  to  which  you 
might  be  exposed  if  we  only  undertook  to 
carry  to  the  end  of  our  line  of  carriage,  we 
will  undertake  to  forward  the  goods  by 
the  next  carriers,  and  on  so  doing  our  lia- 
bility shall  cease,  and  our  character  of  car- 
riers shall  be  at  an  end  ;  and  for  the  pur- 
pose of  so  forwarding  and  of  saving  the 
trouble  of  two  payments  we  will  take  the 
whole  fare,  or  you  may  pay  as  one  charge 
at  the  end  ;  but  if  we  receive  it  we  will 
receive  it  only  as  your  agents  for  the  pur- 
pose of  ultimately  paying  the  next  car- 
riers.'    Contracts  of  a  somewhat  similar 


PART  II.]     CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS. 


83 


The  case  of  Webber  v.  The  Great  Western  Ry.  Co.^  is  in  har- 
mony with  all  the  other  English  cases  on  the  question  involved, 


nature  were  made  when  eonsigninents  of 
large  quautities  of  gold  began  to  be  made 
from  Califbruia  to  this  country.  The  gold 
was  delivered  in  California  to  a  ship  which 
carried  it  to  the  port  in  the  Pacific,  from 
which  it  was  carried  across  the  Isthmus  to 
the  port  in  the  Atlantic,  and  then  brought 
to  a  port  here  ;  and  on  the  bill  of  lading 
was  a  stipulation  that  the  companies  re- 
ceiving should  only  be  responsible  for  loss 
or  damage  as  far  as  they  carried,  but  that 
the  consignor  must  look  to  the  other  com- 
pany for  loss  whilst  in  their  care.  This 
course,  whilst  it  protects  the  receiving  car- 
rier from  responsibilities  which  it  would 
be  hard  upon  him  to  bear,  and  which,  as 
he  is  not  a  carrier  on  the  farther  line  or 
road,  there  is  no  obligation  on  him  to  un- 
dertake, is,  especially  in  the  case  of  lines 
of  railway,  more  convenient  for  the  cus- 
tomer than  the  mode  according  to  which 
he  would  have  to  pay  on  more  than  one 
occasion,  and  would  have  to  provide  some 
person  to  see  to  the  transferiiug  of  the 
goods.  It  is  forbidden  by  no  law  ;  and  if 
the  parties  agree  to  it  there  is  no  ground 
for  complaint.  It  must  be  remembered 
that  the  carrier  in  these  cases  is  not  bound 
to  undertake  to  carry  goods  beyond  his 
own  line,  and  there  is  no  law  to  compel 
him  to  undertake  any  further  duty  with 
respect  to  the  goods,  and  it  must  depend 
entirely  on  the  contract  whether  he  under- 
takes any  duty  after  tlie  goods  have  arrived 
at  the  place  beyond  which  he  does  not  carry. 
He  may  by  contract,  to  be  implied  from 
his  conduct,  or  by  express  contract,  agree  to 
perform  a  further  duty  ;  and  it  is  by  such 
contract  only  thnt  lie  can  be  liable  either 
as  a  carrier  bej'ond  his  own  line  or  as  an 
agent  to  forward  along  another." 

We  tliink  this  is  a  thoroughly  clear 
and  accurate  exposition  of  the  law,  and 
that  it  is  quite  as  applicable  to  this 
country  as  to  England. 

In  making  an  application  of  these  prin- 
ciples to  cases  of  doubt  and  uncertainty 
it  is  no  more  remarkable  that  courts  should 
differ  as  to  the  construction  of  a  railway 
contract  than  that  they  differ,  as  they  so 
frequently  do,  in  the  construction  of  other 
contracts.  We  think  it  is  difficult  to  find, 
either  in  England  or  in  this  country,  a 
case  where  there  was  a  more  marked  dif- 
ference of  opinion  than  in  the  case  we  have 
been  examining,  and  which,  ultimately 
decided  in  the  House  of  Lords,  was,  as 
there  decided,  assented  to  only  with  the 
greatest  doubt  by  two  of  the  four  Law 
Lords  (Lords  Wensleydale  and  Kings- 
down)    sitting    in    the    case.      And    the 


grounds  taken  by  the  other  two  Law 
Lords  for  their  decision  are  very  far  from 
being  satisfactory.  Thus  Lord  Cran  worth 
laid  it  down  that  the  company  receiving 
the  goods  could  only  limit  their  liability 
for  loss  by  either  of  the  connecting  lines 
by  stating  that  limit  "  in  a  manner  inca- 
pable of  being  misunderstood."  This,  we 
think,  is  not  a  sound  rule  of  construction 
of  contracts,  whether  the  contract  be  that 
of  carriers  or  others.  But  if  it  were,  one 
would  reasonably  think  that  there  was  not 
much  room  for  misunderstanding  when 
the  company  embodied  in  their  contract 
such  matter  as  this  :  "And  the  company 
hereby  give  notice  that  any  money  which 
may  be  received  by  them  for  the  convey- 
ance of  goods  by  other  carriers  beyond 
their  said  limits  will  be  so  received  only 
for  the  convenience  of  the  consignors,  for 
the  purpose  of  being  paid  to  such  other 
carriers,  and  will  not  be  received  as  a 
charge  made  by  the  company  upon  the 
goods  in  the  capacity  of  carriers  bf.yoni> 

THE   EXTENT   OF   THEIR   OWN    RAILWAY," 

etc. 

Language  more  strongly  to  declare  that 
the  receipt  of  payment  for  the  conveyance 
of  goods  was  not  to  be  misconstrued  as  an 
acknowledgment  of  liahility  "  beyond  the 
extent  of  their  own  railway  "  could  scarcely 
have  been  used,  and  yet  the  receipt  of  such 
entire  payment  was  made  a  strong  element 
in  the  decision  of  the  case.  The  language 
of  Lord  Chelmsford  during  the  argument 
(at  p.  200),  in  inquiring  as  to  the  practice 
of  "the  company,"  where  he  certainly 
thought  there  was  no  ground  for  his  lan- 
guage being  "misunderstood,"  is  certainly 
on  the  point  not  clearer.  He  asks :  "  Does 
the  company  use  different  receipt  or  tick- 
eting notes  when  carrying  goods  icithin 
the  limits  of  its  oivn  line  alone  ?  "  This 
language  and  that  used  in  the  condition 
are  es.sentially  convertible  ;  and  the  mean- 
ing of  the  language  we  have  above  quoted 
from  the  condition  seems  quite  as  clear 
and  explicit  as  that  used  by  Lord  Chelms- 
ford himself.  Then  again  the  language  in 
the  ship])ing  note  was:  "To  be  sent  to 
Torquay  Station."  This  was  construed  to 
mean  "to  be  carried."  Of  course  the 
goods  could  not  be  sent  without  being 
carried  by  some  one.  But  tlie  words  "to 
be  sent  to  Torquay  "  would  be  more  con- 
sistent with  the  idea  that  the  receiving 
company  were  to  send  tiiom  to  Torquay 
than  tliat  they  were  themselves  to  carry 
them  there.  The  fact  that  they  were 
themselves  to  carry  them  a  part  of  the 
distance,  in  order  the  better  to  send  them 


1  3  H.  &  C.  771. 


84 


COMMENTARIES   ON   SALES. 


[book  III. 


and  fully  sustains  the  ruling  of 
caster  Ry.  Co.i     The  facts  were 

to  Torquay,  would  not  militate  against 
this  construction  as  it  is  made  to  do  in 
the  case.  See  per  Martin,  B.,  at  p.  223. 
And  while  the  conditions  in  the  contract 
are  wide  enough  to  include  cases  where 
the  goods  are  forwarded  longitudinally 
from  the  company's  line,  we  think  that, 
as  a  part  of  the  entire  contract,  they  are 
capable  of  being  fairly  construed  so  as  to 
cover  cases  where  the  goods  are  to  be  for- 
warded latitudinally  by  the  connecting 
railways  "  beyond  the  extent  of  their  own 
railway ; "  more  particularly,  as  in  the 
13th  condition  it  is  expressly  declared 
"That  the  above  conditions  apply  to  all 
goods  received  by  the  above-named  com- 
pany at  all  or  any  of  their  offices  and  ware- 
houses wlierever  situated  ;  and  as  to  all 
(joods  intrusted  to  them,  they  will  only 
carry  them  subject  to  the  above  conditions." 
And  while  the  Lord  Chancellor  (Lord 
Chelmsford)  himself  admits  that,  "As, 
however,  the  goods  were  received  expressly 
'on  the  conditioii-s  stated  on  the  other 
side,'  /  do  not  think  that  any  one  of  the 
conditions  can  be  dispeiised  luith ;  nor  if 
the  10th  condition  bears  the  meaning 
given  to  it  by  the  plaintiff  would  it  be 
at  all  necessary  to  deprive  it  of  its  effect  :  " 
and  "a  contract  to  convey  goods  from  A. 
to  B.,  with  a  condition  that  for  a  certain 
part  of  the  journey  the  company  will  not 
be  responsible,  will  be  no  more  inconsist- 
ent with  the  absolute  contract  for  the 
whole  journey  than  where  a  carrier  un- 
dertakes to  convey  goods  with  a  condition 
that  for  certain  descriptions  of  goods  he 
will  not  be  liable  at  all"  (p.  231);  yet, 
although  these  conditions  were  thus  ex- 
pressly made  a  part  of  the  contract,  we 
find  the  learned  Lord  Chancellor  himself 
(at  p.  232)  virtually  expunging  the  most 
important  condition  (the  10th)  from  the 
contract,  saying,  "This  condition,  there- 
fore, appears  to  me  to  have  no  application 
at  all  to  the  present  contract,  which  is  for 
the  conveyance  of  goods  that  are  to  be 
sent  by  the  Great  Western  Railway  Com- 
pany to  a  place  on  the  line  of  another 
company."  To  construe  these  conditions 
out  of  the  contract  Lord  Chelmsford  was 
forced  to  construe  "  beyond  the  extent  of 
their  own  railway"  in  a  most  unnatural 
manner,  and  in  a  directly  opposite  way  to 
that  in  which  (at  p.  200)  he  had  himself 
used  the  analogous  words  ' '  withiii  the 
limits  of  its  own  line  ; "  he  there  meaning, 
as  clearly  do  the  other  words,  their  own 
line  as  distinguished  from  lines  "beyond 
the  extent  of  their  own  railway." 

There  is  one  other  point  to  which  ref- 

»  8  M.  & 


Rolfe,  B.,  in  Muschamp  v.  Lan- 
as  follows :  The  plaintiff  deliv- 

erence  should  be  made.  It  is  the  point 
made  by  Martin,  B.  (at  p.  225),  and  by 
Lord  Wensleydale  (at  p.  239),  as  to  the 
entirety  of  the  payment  of  the  freight. 
But  just,  as  Lord  Chelmsford  has  pointed 
out,  as  there  may  be  a  contract  to  carry 
an  entire  distance,  with  a  provision  for 
exemption  from  loss  for  a  part  of  the  dis- 
tance, so  is  it  true,  as  correctly  pointed 
out  in  the  very  able  opinion  of  Crompton, 
J.,  that  there  may  be  an  agreement  (such 
as  is  expressly  provided  for  in  the  condi- 
tions in  this  case)  that  payment  may  be 
received  by  a  railway  company  for  an  en- 
tire distance,  and  3'et  "  that  any  money 
which  may  be  received  by  them  as  pay- 
ments for  the  conveyance  of  goods  by 
other  carriers  beyond  their  said  limits  will 
be  so  received  only  for  the  convenience  of 
the  consignors,  for  the  purpose  of  being 
paid  to  such  other  carriers,  and  will  not 
be  received  as  a  charge  made  by  the  com- 
pany upon  the  goods  in  the  capacity  of 
carriers  beyond  the  extent  of  their  own  rail- 
way," and  "the  above  conditions  apply 
to  all  goods  received  by  the  above-named 
company  at  all  or  any  of  their  offices  and 
warehouses  wherever  situated,  and  as  to 
all  goods  intrusted  to  them  they  will  only 
agree  to  carry  them  subject  to  the  above 
conditions."  In  a  case  like  this  the  re- 
ceipt of  the  entire  payment  carries  with  it 
no  implied  liability  of  the  receiving  com- 
pany over  the  entiie  route,  along  a  part  of 
which  there  are  independent  connecting 
companies. 

Where  goods  are  received  by  a  railway, 
as  in  Muschamp  v.  Lancaster  Ry.  Co., 
8  M.  &  W.  421,  and  in  some  of  the  other 
cases,  to  be  carried  from  A.  to  B.,  the  fact 
of  the  entirety  of  the  freight  may  with  such 
a  receipt  be  an  important  element  in  con- 
struing the  contract,  to  show  that  it  was  an 
entire  contract  by  the  receiving  company 
to  carry  the  goods  the  whole  distance, 
though  a  part  of  the  route  might  be  trav- 
ersed by  connecting  companies  ;  but  where 
there  is  an  express  condition  otherwise,  as 
we  think  thei-e  was  in  Bristol  &  Lxeter 
Ry.  V.  Collins,  7  H.  L.  Cas.  194,  it  seems 
to  us  there  is  no  room  there  for  such  an 
implication.  On  the  whole,  we  think  that 
the  unanimous  decision  in  this  case  of  the 
Exchequer  Chamber,  and  the  answers  of 
Byles,  Crompton,  Williams,  and  Wight- 
man,  JJ.  (four  out  of  the  six  judges), 
sounder  than  the  decision  in  the  House  of 
Lords  ;  and  that  the  very  strong  doubts  of 
two  of  the  four  Law  Lords  who  hesitatingly 
assented  to  the  decision  were  fully  justi- 
fied.    And  we  should  not  think  it  at  all 

W.  421. 


1 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OP  GOODS.       85 

ered  to  P.  at  Worcester  a  package  addressed  to  the  plaintiff  to  be 
carried  from  Worcester  to  Chester.  P.,  who  acted  as  agent  for 
receiving  goods  both  of  the  Great  Western  Ry.  Co.  and  London  & 
N.  W.  Ry.  Co.,  wrote  under  the  address,  "  Via  Stafford,"  and  de- 
Hvered  the  package  to  the  defendants,  who  carried  it  on  their  line 
to  Stafford,  from  whence  it  was  carried  in  the  defendants'  wagons 
on  the  line  of  the  London  &  N.  W.  Ry.  to  Chester.  At  the  trial 
before  Blackburn,  J.  (one  of  the  very  ablest  of  the  English  judges), 
the  jury  were  directed  that  one  question  was,  did  the  defendants 
contract  with  the  plaintiff  to  carry  the  goods  from  Worcester  to 
Chester.  If  P.  was  the  agent  for  the  customer  to  contract  with 
the  defendants,  and  did  so  contract,  the  plaintiff  was  right.  But 
if  P.  was  agent  for  the  London  &  N.  W.  Ry.  Co.,  and  as  such  ac- 
cepted the  goods  from  the  customer  for  them,  the  plaintiff  should 
sue  either  P.  or  the  London  &  N.  W,  Ry.  Co.  The  jury  having 
found  for  the  plaintiff,  leave  was  reserved  to  the  defendants  to 
move  to  enter  a  verdict  for  them  if  the  court  should  be  of  opinion 
that  there  was  no  evidence  on  which  the  jury  ought  to  have  found 
that  the  defendants  were  liable.  On  the  argument  Bramwell,  B., 
said:  "The  question  is  whether  there  was  evidence  for  the  jury 
of  a  contract  by  the  Great  Western  Ry.  Co.  to  carry  the  whole 
distance  from  Worcester  to  Chester ;  "  to  which  counsel  for  the 
defendants  replied :  "  The  words  '  via  Stafford '  on  the  receipt 
note  and  invoice  merely  indicated  the  route  by  which  the  clock 
would  go.  The  defendants  might  have  said,  '  We  will  only  carry 
the  clock  to  Stafford,  and  there  hand  it  over  to  the  London  & 
N.  W.  Ry.  Co.'"  Bramwell,  B.,  again:  "Suppose  a  person  de- 
livered to  a  carrier  at  Brentford  a  parcel  directed  to  a  person  in 
Calcutta  '  per  ship  Asia,'  and  the  carrier  delivered  it  to  the  ship's 

singular  if  in  a  similar  state  of  facts  the  posing  the  Great  Western  Railway  Com- 
courts  in  this  country,  however  they  may  pany  (the  receiving  company)  to  have  sent 
differ  on  the  general  (question,  should  hold  these  goods  as  agent  for  Collins  by  means 
that  the  contract  in  the  case  had  been  of  the  Bristol  &  Exeter  Railway  (tlie  con- 
misconstrued,  and  that  the  liability  of  the  necting  company),  that  portion  of  the  con- 
receiving  company  in  such  a  case  as  this  tract  between  Collins  and  the  company 
had  been  limited  and  qualified  by  the  ex-  (i.  c.  the  receiving  company)  which  relat- 
press  terms  of  the  contract.  ed  to  loss  or  damage  by  fire  was  to  be  im- 
It  would  seem  by  the  conclusion  of  his  ported  necessarily  into  the  cnntiact  made 
judgment  tliat  the  Lord  Chancellor  was  with  the  Bristol  &  Exeter  Railway  Coin- 
not  entirely  satisfied  with  his  own  judg-  pany,  I  confess  upon  that  subject  I  should 
ment  on  the  main  ground  taken  by  him,  have  entertained  very  considerable  doubt." 
as  he  concludes  (at  p.  233)  with  a  saving  The  whole  case,  in  fact,  we  think,  is  one 
of  the  utterly  untenable  position  that  a  of  "  very  considerable  doubt  ;"  and,  as  an 
clause  as  to  the  non-responsibility  of  the  authority  on  the  construction  of  tlie  con- 
receiving  company  for  loss  by  fire  followed  tract  involved  in  it,  we  think  is  one  that, 
and  attached  to  the  goods  in  the  hands  although  decidi'd  by  the  House  of  Lords, 
of  the  connecting  company.  On  this  point  will  not  readily  be  followed  in  jilaces 
not  even  Lord  Cranworth  agreed  with  him.  where,  as  in  this  counti'v,  it  is  not,  if 
Lord  Cranwoith  says  (at  p.  237):  "Now  wrongly  decided,  of  a  binding  character, 
if  the  question    had   been  whether,  sup- 


86 


COMMENTARIES   ON   SALES. 


[book  III. 


agent  in  London,  would  the  carrier  be  liable  for  its  loss  ?  "  To 
which  the  counsel  replied :  "  Muschamp  v.  The  Lancaster  Ry. 
Co.i  establishes  this  principle,  that  where  a  railway  company  un- 
dertake to  carry  goods  to  a  distant  place  over  the  lines  of  other 
companies  beyond  their  own,  that  is  prima  facie  one  contract  to 
carry  the  whole  distance,  and  they  are  liable  for  the  loss  of  the 
goods  during  any  part  of  the  journey.  Tliat  principle  was  recog- 
nized and  adopted  in  Scothorn  v.  The  South  Staffordshire  Ry. 
Co."  2  And  per  Martin,  B. :  "  The  decision  of  the  House  of  Lords 
in  The  Bristol  &  Exeter  Ry.  Co.  v.  Collins  ^  is  conclusive  of  this 


case. 


The  contention  for  the  defendants  was  similar  to  that  of  many 
decisions  in  this  country,  thus  :  "  The  contract  of  the  defendants 
was  to  carry  the  clock  to  Stafford  and  there  deliver  it  to  the  Lon- 
don &  N.  W.  Ry.  Co.  [Bramwell,  B. :  Suppose  a  parcel  was  de- 
livered to  the  South  Western  Railway  at  Reading  addressed  to  a 
person  at  Dover,  ^  per  London,  Chatham  &  Dover  Railway,'  which 
company  would  have  been  liable  if  it  was  lost  ?]  The  South 
Western  Ry.  Co.  would  have  performed  their  contract  when  they 
delivered  the  goods  to  the  London,  Chatham  &  Dover  Railway."  * 
But,  in  the  case  itself,  the  court  held,  unanimously,  that  the  de- 
fendants, the  Great  Western  Ry.  Co.,  were  liable.^  The  question 
as  to  the  liability  of  the  "  contracting  company  "  has  been  simi- 


i  8  M.  &  W.  421. 

2  8  Ex.  3il. 

3  7  H.  L.  Cas.  194. 

*  In  this  last  assumed  case,  we  should 
say,  if  there  was  nothing  else  in  the  case 
but  the  address,  put  on  by  the  shipper, 
this  would  be  correct,  as  it  of  itself  would 
imply  that  the  shipper  required  the  goods 
to  be  delivered  for  him  to  the  Loudon, 
Chatham  &  Dover  Railway.  So,  too,  in 
the  previous  sui)posititious  case  of  the  par- 
cel directed  "per  ship  Asia."  In  this  lat- 
ter case  it  might  well  be  that  the  shipper 
had  an  independent  contract  with  the  ship 
Asia  (somewhat  similar  to  the  original 
contract  in  Scothorn  v.  South  Staffordshire 
Ry.  Co.,  8  Ex.  341,  to  deliver  the  goods 
to  the  ship  Melbourne),  to  carry  the  goods 
to  Calcutta,  and  that  the  carrier  at  Brent- 
ford had  no  connection  whatever  with  the 
Asia.  The  effect,  in  such  a  case,  would 
seem  to  be  the  same  as  though  the  goods 
were  sent  from  a  warehouse  by  a  carter, 
addressed  to  a  distant  place,  per  a  ship,  or 
per  a  railway  ;  the  implication  in  such  a 
case  being  that  the  carter  had  performed 
his  contract  on  delivery  by  him  of  the 
goods  to  the  ship  or  railway  named  in  the 
addi'ess.  The  fact,  however,  of  the  carrier 
giving  a  receint  in  a  form  from  which  it 


might  be  implied  that  he  was  contracting 
to  carry  the  entire  distance  ;  or  that  one 
through  rate  was  charged  for  the  carriage, 
or  any  other  matter  carrying  with  it  sim- 
ilar implication,  might  justify  a  jury  iu 
coming  to  a  different  conclusion,  as  in 
Wilby  V.  The  West  Cornwall  Ry.  Co.,  2 
H.  &  N.  703,  where  the  contract  was  held 
to  be  to  carry  the  goods  by  the  route 
named.  Where  the  contract  is  implied 
from  the  facts  simply,  the  conclusion  from 
one  state  of  facts  may  be  very  different 
from  what  it  would  be  under  a  state  of 
facts  entirely  different.  The  question  in 
all  of  these  eases  is,  where  there  is  no  ex- 
press contract,  what  is  the  contract  to  be 
implied  from  all  the  facts  in  the  particular 
case  ? 

^  Pollock,  C.  B.,  in  delivering  the 
judgment,  said  :  ' '  The  question  in  this 
case  was  whether  the  Great  Western  Ry. 
Co.  were  liable  to  the  plaintiff'  for  damage 
done  to  his  clock  during  the  transit  from 
Worfester  to  Chester.  I  am  of  opinion 
with  the  rest  of  the  court  that  there  was 
evidence  for  the  jury  of  one  contract  only 
and  not  two  contracts.  The  jury  have  so 
found,  and  we  think  there  was  evidence 
to  warrant  their  finding. " 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS. 


87 


larly  decided  in  Ireland,  with  the  additional  feature  that,  in  the 
case  of  the  sale  of  a  through  ticket  to  a  passenger,  the  recognition 
of  the  ticket  by  the  different  companies  is  some  evidence  that  they 
are  all  parties  to  the  entire  contract.^ 

In  Mytton  v.  The  Midland  Ry.  Co. ,2  it  was  held  that  where, 
by  a  traihc  arrangement  between  two  railway  companies,  pas- 
sengers are  booked  through,  the  contract  is  one  entire  con- 
tract between  the  passenger  and  the  company  issuing  the  ticket, 
and  that,  under  such  contract,  the  passenger  has  no  remedy 
against  the  connecting  company  for  loss  of  his  luggage  on  their 
line ;  his  remedy,  if  any,  being  against  the  company  with  which 
he  contracted.  The  same  doctrine  was  held  in  Coxon  v.  The 
Great  Western  Ry.  Co.,^  where  the  question  came  up  under  a 
contract  essentially  different  from  that  in  Bristol  &  Exeter  Ry. 
V.  Collins.'' 

In  Coxon  v.  The  Great  Western  Ry.  Co. ,5  the  contract  was  held 
to  be  an  entire  contract  with  the  receiving  railway,  for  the  car- 
riage of  live  stock  over  the  entire  route,  and,  therefore,  in  an 


1  Keys  V.  Belfast  Ry.,  8  Ir.  C.  L.  167, 
184.  Monahan,  C.  J.,  in  delivering  the 
unanimous  judgment  of  the  court,  said  : 
"  We  are  all  of  opinion,  without  entertain- 
ing any  doubt,  that,  in  the  first  place, 
there  was  evidence  of  an  entire  contract, 
inasmuch  as  the  idea  that  a  man  who  takes 
a  single  through  ticket  from  Belfast  to 
Londonderry,  thereby  entered  into  four 
several  contracts  with  four  several  persons, 
inchiding  the  omnibus  proprietor,  is  ab- 
surd. There  also  being  evidence  that  the 
money  paid  for  the  through  ticket  was 
distributed  among  all  the  railway  compan- 
ies, and  the  fact  of  each  company  recog- 
nizing the  through  ticket  as  entitling  the 
holder  to  be  carried  on  their  line,  was 
some  evidence  that  the  clerk  who  issued 
the  ticket  was  the  agent  of  all  the  com- 
panies, and,  therefore,  I  was  bound  to 
leave  the  question  to  the  jury  as  I  did,  leav- 
ing them  to  decide  whether  a  contract  for 
the  entire  journey  was  or  was  not  entered  in- 
to by  all  or  any  of  the  railway  companies." 
This  case  was  affirmed  by  the  same  court 
in  Hayes  v.  South  Wales  Ry.  Co.,  9  Ir.  C. 
L.  474.  There  A.  caused  swine  to  be 
shipped  upon  a  steamer  belonging  to  B., 
which  plied  between  Cork  and  Milford 
Haven.  He  paid  to  the  agent  of  B.  for 
a  through  freight  for  the  conveyance  of  the 
pigs  to  London,  per  the  South  Wales  and 
Great  Western  Railways.  It  appeared  in 
evidence  that  over  the  door  of  the  office  in 
Cork,  where  the  freight  had  been  paid,  a 
sign-board  was  fixed,  with  the  words, 
"  South  Wales  Railway  Company's  Office," 
painted  on  it,  and  a  similar  one  over  the 


entrance  to  the  cattle-yard  adjoining. 
The  freight  receipt-note  was  also  headed 
with  the  words,  "  South  Wales  Steam  Nav- 
igation Company."  It  was  also  proved  by 
persons  who  had  sent  cattle  to  London, 
that  they  had  been  forwarded  for  freights 
paid  at  Cork,  and  that  claims  made  upon 
the  South  Wales  Company  had  been  dis- 
charged at  the  office  in  Cork  by  the  ship- 
ping agent.  B.  proved  that  the  steamer 
was  his  property  ;  that  the  shipping  agents 
were  paid  by  him  and  that  the  words 
painted  on  the  boards,  &c.,  referred  to 
him,  and  were  not  sanctioned  by  the  rail- 
way company  ;  but  he  admitted  having 
made  an  agreement  with  the  latter,  for 
running  his  boat  in  conjunction  with  their 
line,  and  dividing  the  through-freights. 
It  was  held,  on  this  evidence,  that  the 
judge  was  bound  to  have  directed  the  jury 
to  find  that  the  company  were  joint  con- 
tractors with  B.,  in  respect  of  the  entire 
journey,  and  were  accordingly  liable  for 
breaches  of  contract,  alleged  to  have  been 
committed  in  the  conveyance  of  the  swine 
by  the  steamer  from  Cork  to  Milford  ;  and 
that,  independently  of  the  agreement, 
there  was  evidence  to  go  to  the  jury  of 
such  joint  liability.  This  holding  only 
harmonizes  with  the  English  cases  on  the 
ground  of  partnership  or  agency  between 
the  carriers. 

2  4  H.  &  N.  615  ;  28  L.  J.  N.  s.  Ex. 
385. 

3  5  H.  &  N.  274. 

*  7  H.  L.  Cas.  194. 
6  5  H.  it  N.  274. 


88 


COMMENTARIES   ON   SALES. 


[book   III. 


action  on  the  contract,  that  the  connecting  railway  was  not  liable 
to  the  shipper  for  injury  to  the  stock  on  their  portion  of  the 
route.  There  was  a  clause  in  the  way-bill  providing  that  the 
receiving  railway  would  not  be  subject  to  liability  for  loss  on 
the  connecting  railway,  but  the  court  held  that  that  did  not 
mean  that  they  would  not  carry  on  another  railway,  but  only 
that  they  would  not  be  liable  for  damage  arising  on  such  rail- 
way, and  that  while  there  was  an  absolute  refusal  of  liability  for 
damage,  there  was  not  a  refusal  to  carry .^ 


I 


1  See  Martin  v.  The  Great  Indian  Ry. 
Co.,  L.  R.  3  Ex.  9,  where  it  was  held,  un- 
der a  railway  contract  for  the  caiTiage  of 
goods,  the  contract  containing  the  clause, 
"the  company  accepting  no  responsibil- 
ity," that  the  stipulation  did  not  exempt 
the  defendants  from  liability  for  a  loss 
arising  wholly  from  their  own  negligence, 
and  that,  although  the  plaintiff  could  not 
recover  for  a  breach  of  the  contract,  the 
defendants  were  liable  for  an  injury  done 
to  the  property  through  their  negligence, 
whilst  the  goods  were  in  their  custody. 
The  ground  of  the  decision  in  this  case 
makes  it  consistent  with  the  holding  in 
Coxen  V.  The  Great  Western  Ry.  Co.,  5 
H.  &  N.  274,  where  the  plaintiff  sought  to 
recover,  for  damages  to  live  stock  while  in 
the  possession  of  tlie  connecting  company, 
under  an  alleged  contract  with  the  con- 
necting companj',  with  which  he  had  no 
contract  ;  his  contract  having  been  with 
the  receiving  company.  The  same  dis- 
tinction is  made  clear  by  Hayn  v.  CuUi- 
ford,  3  C.  P.  Div.  410  ;  and,  on  appeal,  4 
C.  P.  Div.  182.  There  bags  of  sugar 
shipped  by  the  plaintiffs  were  carried  in 
the  defendant's  steamship  from  H.  to  L., 
at  an  agreed  freight.  The  vessel  was  char- 
tered for  the  voyage  by  P.,  who  signed  the 
bill  of  lading  as  agent.  It  contained  a 
clause  that  the  owners  of  the  ship  should 
not  be  liable  for  the  default  of  the  pilot, 
master,  or  mariners  in  navigating  the  ship, 
and  a  farther  clause  that  the  captain,  offi- 
cers, and  crew  in  the  transmission  of  the 
goods  should  be  considered  the  servants  of 
the  shipper,  owner,  or  consignee.  The 
sugar  was  negligently  stowed  under  oxide 
of  zinc,  and  was  consequently  damaged. 
It  did  not  appear  with  whom  the  plaintiffs 
made  the  contract  of  carriage.  It  was  held 
by  the  Court  t)f  Appeal,  affirming  the  judg- 
ment of  the  Conmion  Pleas  Division,  that 
the  defendants  were  liable  to  compensate 
the  plaintiffs  for  the  damage  done  to  the 
sugar  ;  for  either  the  defendants  had  con- 
tracted to  carry  the  sugar  upon  the  terms 
set  out  in  the  bill  of  lading,  which  did  not 
relieve  them  from  responsibility  for  negli- 
gent storage  ;  or  if  they  liad  not  contracted 


with  the  plaintiffs,  they  were  liable  for 
misfeasance,  that  is,  for  stowing  the  goods 
in  such  a  manner  as  to  come  into  contact 
with  a  mischievous  substance.  Bramwell, 
L.  J.,  in  delivering  the  judgment  of  the 
Court  of  Appeal,  said  :  "  The  case  is  in  a 
dilemma.  Either  there  was  a  contract  be- 
tween the  plaintiffs  and  the  defendants,  or 
there  was  not.  If  there  was  a  contract 
between  them,  it  is  the  one  contained  in 
or  evidenced  by  the  bill  of  lading.  Isow 
it  is  clear  that  if  that  is  the  contract,  the 
defendants  are  liable  on  the  ordinary  con 
tract  of  a  carrier,  unless  (and  there  is  not) 
there  is  some  clause  in  the  contract  to  re- 
lieve them ;  whether  the  words  in  other 
respects  would  extend  to  this  case  we  need 
not  say,  as  there  is  one  respect  in  which 
they  do  not ;  they  extend  to  the  acts  of 
captain,  officers,  and  crew  ;  they  do  not 
extend  to  the  acts  of  the  defendants  and 
their  other  agents  and  servants,  therefore 
not  to  the  acts  and  defaults  of  the  steve- 
dore. But  it  is  by  these  acts  and  defaults 
that  the  goods  were  damaged.  If,  then, 
there  is  a  contract  between  the  plaintiffs 
and  defendants,  the  defendants  are  liable. 
So,  also,  if  there  is  not.  For  if  so  the 
case  is  this  :  The  goods  were  lawfully  with 
the  defendants'  license  in  their  ship,  and 
they  tortiously  so  dealt  with  them  that  the 
goods  were  injured.  It  was  found,  as  a 
fact,  that  the  loading  of  the  oxide  was  neg- 
ligent. It  was,  therefore,  wrongful,  not  as 
a  breach  of  contract,  but  as  a  wrongful  act 
in  itself.  If  the  defendants  had  done  what 
was  done  wilfully,  that  is  to  say,  inten- 
tionally, that  it  would  injure  the  plain- 
tiffs goods,  it  is  clear  they  would  be  lia- 
ble. But  what  difference  does  it  make 
that  they  did  it  ignorantly  ?  It  may  be 
asked,  where  is  the  duty  of  care  ?  I  answer 
that  duty  that  exists  in  all  men  not  to  in- 
jure the  property  of  others.  This  is  not  a 
mere  non-feasance  which  is  complained  of ; 
it  is  a  misfeasance  ;  an  act  and  wrongful. 
Suppose  A.  lets  B.  a  horse,  B.,  with  C. 's 
license,  puts  upatC.'s  stat>les  for  reward 
to  C.  from  B.  ;  C.  turns  into  the  stahlps 
loose  a  vicious  horse,  known  to  be  such, 
not  to  injure  A.'s  horse,  but  not  thinking 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OP  GOODS. 


89 


The  followinf^,  under  the  English  cases,  are  well-decided  propo- 
sitions of  law  in  the  matter :  First,  a  railway  company  issuing  a 


of  the  matter.  There  cannot  be  a  doubt 
that  C".  would  be  liable  to  A.  if  the  horse 
was  injured.  So  if  he  gave  the  horse  bad 
oats  which  injured  the  horse,  he  would  be 
liable,  though  lie  would  not  be  to  A.  if  he 
omitted  to  feed  him.  So  here  justice  is 
done,  though  indirectlj'.  \_Directly,  in  the 
case  put,  we  should  rather  say  ;  the  next 
case  put  is  wdiere  the  remedy  is  indirect  or 
circuitous.  Auth.]  It  is  certain  that  if 
the  charterers  sued  on  the  charter  in  re- 
.spect  of  the  complaint  in  this  action,  there 
would  be  no  defence,  and  it  is  certain  that 
they  ought  to  sue,  if  necessary,  for  the 
benefit  of  the  plaintiffs."  See  Sack  v. 
Ford,  13  C.  B.  n.  .s.  90  ;  Saudemanu  v. 
Scurr,  L.  R.  2  Q.  B.  86;  The  St.  Cloud, 
Br.  &  Lush.  4  ;  Gilkison  v.  Middleton,  2 
C.  B.  N.  s.  134  ;  Czech  v.  General  Nav. 
Co.,  L.  R.  3  C.  P.  14  ;  Taylor  v.  Liver- 
pool &  Great  Western  Steam  Co.,  L.  R. 
9  Q.  B.  546  ;  Good  v.  London  Steamship 
Association,  L.  R.  6  C.  P.  569  ;  Schuster 
V.  McKellar,  7  E.  &  B.  704  ;  Fletcher  v. 
Rylands,  L.  R.  3  H.  L.  330  ;  Jones  v.  Fes- 
tiniog  R.  Co.,  L.  R.  3  Q.  B.  733  ;  Alston 
V.  Herring,  11  Ex.  822  ;  Brass  v.  Mait- 
land,  6  E.  &  B.  470  ;  Ohrloff  v.  Briscall, 
L.  R.  1  P.  C.  231  ;  Steel  v.  State  Line 
S.  S.  Co.,  3  App.  Cas.  72  ;  Blaikie  v. 
Stembridge,  6  C.   B.   N.  s.  894. 

The  same  principle  governing  Martin 
V.  The  Great  Indian  Rv.  Co.,  L.  R.  3  Ex. 
9,  and  Hayu  v.  Culliford,  3  C.  P.  Div. 
410,  4  C.  P.  Div.  182,  was  applied  in 
Foulkes  V.  The  Metropolitan  District  Ry. 
Co.,  4  C.  P.  Div.  267;  affirmed  in  the 
Court  of  Appeal,  5  C.  P.  Div.  157.  The 
defendants  had  running  powers  over  the 
Southwestern  Railway  between  H.  and 
the  R.  station  of  the  Southwestern  Ry. 
Co.  Above  the  booking  office  at  the  R. 
station  were  the  words,  ' '  Southwestern 
and  Metropolitan  Booking  Office  and  Dis- 
trict Railway."  The  defendants  and  the 
S.  W.  company  divided  the  profits  between 
H.  and  R.  The  plaintiti"  took  from  the 
clerk  at  R.,  there  employed  by  the  S.  W. 
company,  a  return  ticket  to  H.  and  back. 
The  ticket  was  not  headed  with  the  name 
of  either  company,  but  bore  on  it  the 
words  "Via  Disti'ict  Railway."  On  his 
return  journey  from  H.  to  R.  the  plaintiff 
travelled  with  his  ticket  in  a  carriage  of 
a  train  belonging  to  the  defendants,  and 
under  the  management  of  their  servants. 
The  carriage  being  unsuited  for  the  R. 
station  platform,  the  [ilaintifl',  on  alighting 
there,  fell  and  was  hurt.  In  an  action 
against  the  defendants  far  Ircach  of  duty, 
the  jury  found  negligence  in  them.  It 
was  held  that,  having  invited  or  permit- 


ted the  plaintiff  to  tiavel  in  their  train, 
the  defendants  were  bound  to  make  rea- 
sonable provision  for  his  .safety  ;  and  that 
there  was  evidence  of  their  liability,  even 
assuming  the  ticket  not  to  have  been  is- 
sued by  or  for  them,  but  by  the  S.  W. 
company.  It  was  also  held  in  tlie  case, 
that  even  assuming  that  the  contract  was 
with  the  S.  W.  company,  so  that  an  action 
for  damages  under  the  contract  would  lie 
against  them,  yet  that  an  action  would  as 
well  lie  against  the  defendants,  whose  acts 
caused  the  injury  to  the  plaintiff;  the  de- 
fendants being  liable,  independent  of  ex- 
press contract,  for  misfeasance,  though  not 
for  non-feasance.  The  point  is  well  illus- 
trated by  Lopes,  J.  (4  C.  P.  Div.  at  ]>.  282), 
thus:  "Railway  A.  issues  tickets  for  rail- 
way A.  and  railway  B.  The  traffic  is  some- 
times worked  by  carriages  and  servants 
belonging  to  railway  A.,  and  sometimes 
by  carriages  and  servants  belonging  to 
railway  B.  A  passenger  takes  a  ticket 
from  railway  A.  and  gets  into  a  carriage 
belonging  to  railway  B.,  drawn  by  railway 
B.'s  engines,  and  manned  by  railway  B.'s 
servants.  The  passenger  traverses  some 
portion  of  railway  B.'s  line  ;  an  accident 
is  caused  by  the  negligence  of  railway  B.'s 
servants,  and  through  some  defect  in  rail- 
way B.'s  carriages  not  being  properly 
adapted  to  the  exigencies  of  the  traffic. 
Now,  although  not  necessary,  perhaps,  to 
go  that  length  for  the  decision  of  this  case, 
I  think  that,  according  to  the  authoritie.«, 
the  passenger  could  sue  either  railway  A, 
or  railway  B.  He  could  sue  railway  A.  on 
the  contract  arising  from  the  ticket  issued 
by  the  company  to  carry  him  the  whole 
distance  with  reasonable  care  or  caution, 
or  he  could  sue  railway  B.  as  the  imme- 
diate authors  of  the  negligence,  on  the 
implied  contract  or  undertaking  which 
would  arise  from  his  having  been  received 
into  the  carriage,  or  from  his  having  been 
invited  to  go  into  the  carriage  of  railway 
B.  and  become  a  passenger  on  the  rail- 
way." The  same  ground  is,  in  effect,  cov- 
ered by  Bramwell,  L.  J.,  in  the  Court  of 
Appeal  (5  C.  P.  Div.  at  p.  159)  :  "What 
was  done  or  omitted  was  wilful.  But  the 
substance  of  the  finding  of  the  jury  is  that 
the  carriage  was  dangerous  with  reference 
to  the  platform,  or  the  platform  with  ref- 
erence to  the  carriage,  and  that  the  plain- 
tiff might  and  did  reasonably  act  in  the 
belief  that  they  were  not  in  that  state, 
but  safe  for  him  to  use  ;  that,  in  truth, 
the  combined  arrangements  were  a  trap  or 
snare  ;  so  that,  if  he  lind  been  carried  gra- 
tuitously as  by  a  friend,  he  would  liave  a 
right  of  action  against  him.     With  the 


90 


COMMENTARIES   ON   SALES. 


[book  III. 


ticket  to  a  passenger  for  a  journey  partly  on  the  company's  own 
line  and  partly  on  the  line  of  another  company  may  be,  and  pre- 
sumably is,  responsible  for  the  safety  of  the  passenger  on  his 
whole  journey,  and  is  liable  to  compensate  him  for  injuries  caused 
to  him  by  the  negligence  of  railway  servants  or  defective  construc- 
tion of  carriages  or  stations,  to  whichever  company  they  belong.^ 


propriety  of  so  findincr  we  have  nothing  to 
do.  There  was,  according  to  that  finding, 
a  tort,  whether  in  the  defendants  alone 
or  in  conjunction  with  the  Southwestern 
does  not  matter,  and  the  plaintitf  is  en- 
titled to  recover.  But  if  the  contract  had 
not  been  a  contract  with  the  defendants, 
and  all  that  could  have  been  complained 
of  was  a  non-feasance,  I  should  hold  they 
were  not  liable."  In  Marshall  v.  York, 
Newcastle,  &  Berwick  Ry.  Co.,  11  C.  B. 
655,  the  declaration  was,  that  the  plaintiff, 
at  the  re([uest  of  the  defendants,  became  and 
was  a  passenger  in  one  of  their  carriages, 
to  be  by  them  safely  and  securely  carried 
and  conveyed  thereby,  together  with  his 
luggage,  on  a  certain  journey  along  the 
said  railway.  The  plaintiff's  ticket  had 
been  taken  by  his  master.  The  action 
was  for  loss  of  goods;  and  Jervis,  C.  J., 
in  giving  judgment,  mentions  tlie  admis- 
sion in  argument  that  if,  under  the  same 
circumstances,  the  plaintitf  had  sustained 
the  loss  of  a  limb  or  any  other  personal 
injury,  he  alone  could  have  sued  ;  and 
proceeds  :  "  It  is  said  that  that  is  because 
the  master  could  not  maintain  an  action 
in  respect  of  the  personal  suffering  of  the 
servant,  though  he  might  in  respect  of 
the  loss  of  service.  But  upon  what  prin- 
ciple does  the  action  lie  at  the  suit  of  the 
servant  for  his  personal  suffering  ?  Not 
by  reason  of  any  contract  between  him 
and  the  company,  but  by  reason  of  a  duty 
implied  by  law  to  carry  him  safely.  If, 
under  the  circumstances  of  this  case,  the 
plaintiff  could  have  recovered  in  respect 
of  a  personal  injury  sustained  by  him, 
there  is  no  reason  why  he  should  not  also 
recover  in  respect  of  the  loss  of  his  lug- 
gage." And  Williams,  J.,  says  (11  C.  B. 
at  p.  663):  "The  case  was,  I  think, 
put  upon  the  right  footing  by  Mr.  Hill, 
when  he  said  that  the  question  turned 
upon  the  inquiry  whether  it  was  necessary 
to  show  a  contract  between  the  jdaintiff 
and  the  railway  company.  His  proposi- 
tion was,  that  this  declaration  could  only 
be  sustained  by  proof  of  a  contract  to  carry 
the  plaintiff  and  his  luggage  for  hire  and 
I'eward  to  be  paid  by  the  plaintiff,  and 
that  the  traverse  of  that  part  of  the  decla- 
ration involves  a  traverse  of  the  payment 
by  the  plaintiff.  1  am  of  opinion  that 
there  is  no  foundation  for  that  proposi- 
tion.    It  seems  to  me  that  the  whole  cur- 


rent of  authorities,  beginning  with  Govett 
V.  Radnidge,  3  East,  62,  and  ending  with 
Pozzi  V.  Shiiitou,  8  A.  &  E.  963,  estab- 
lishes that  an  action  of  this  sort  is,  iu 
substance,  not  an  action  of  contract,  but 
an  action  of  tort  against  the  company  as 
carriers."  This  case  was  approved  by 
Blackburn,  J.,  in  Austin  v.  Great  Western 
Ry.  Co.,  L.  R.  2  Q.  B.  442,  445,  where  he 
says:  "I  think  that  what  was  said  in 
the  case  of  Marshall  f.  York,  Newcastle, 
&  Berwick  Ry.  Co.,  11  C.  B.  655,  was 
quite  correct.  It  \\'as  there  laid  down 
that  the  right  which  a  passenger  has  to 
be  carried  safely  does  not  depend  on  his 
having  made  a  contract,  but  that  the  fact 
of  his  being  a  passenger  ca.sts  a  duty  on 
the  company  to  carry  him  safely."  In  Gill 
V.  Manchester  Ry.  Co.,  L.  R.  8  Q.  B.  186, 
the  plaintiff  desired  to  send  a  cow  from  D. 
to  S.,  and  took  her  to  the  station  at  D. 
belonging  to  the  G.  N.  Co.,  where  he 
booked  her  for  S.  by  the  defendants'  rail- 
road, signing  a  contract  with  the  G.  N. 
Co.  exempting  tliem  from  damage  that 
might  be  occasioned  by  the  restiveness  of 
the  cow.  She  was  put  into  a  truck  be- 
longing to  the  defendants,  and  on  arriv- 
ing at  S.  was  brought  to  a  siding  by  the 
defendants'  yard  for  the  purpose  of  being 
unloaded,  in  the  process  of  which  she  got 
on  to  the  line  and  was  killed.  By  an 
agreement  between  the  defendants  and  the 
G.  N.  Co.  it  was  provided  that  a  complete 
and  full  system  of  interchange  of  traffic  in 
passengers,  goods,  etc.,  should  be  estab- 
lished between  the  two  companies,  with 
thi'ough  tickets,  etc.,  the  stock  of  the  two 
companies  being  treated  as  one  stock,  and 
the  two  companies  assisting  each- other  as 
if  they  were  amalgamated.  The  court 
held  that  the  action  might  be  brought 
against  either  of  the  companies,  and, 
therefore,  that  the  action  was  rightly 
brought,  inasmuch  as  the  agreement,  if  it 
did  not  constitute  a  partnership  between 
the  two  companies,  showed  that  the  G.  N. 
Co.  became  the  agents  of  the  defendants 
to  make  the  contract  for  the  carriage  of 
the  cow,  and  that  the  condition  in  the 
contract  did  not  relieve  the  defendants 
from  liability  for  negligence  on  the  part  of 
their  servants,  causing  the  loss  of  the  cow. 
1  Great  Western  Rv.  Co.  v.  Blake,  7  H. 
&  N.  987,  991  ;  Thomas  v.  Rhvmney  Ry. 
Co.,  L.  R.  5  Q.  B.  226;  L.  R.  6Q.  B.  26«. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.       91 

Secondly^  a  railway  company  may  under  certain  circumstances 
be  subject,  in  favor  of  a  passenger  upon  such  a  journey  as  last 
mentioned,  to  similar  responsibilities,  although,  as  between  the 
company  and  the  individual  passenger,  there  may  have  been  no 
contract ;  as,  for  instance,  in  the  case  of  a  servant  travelling  with 
his  master  upon  a  ticivet  talcen  by  the  latter ;  ^  or  of  a  child  of 
tender  years  travelling  upon  a  ticket  taken  by  its  parent,  and  even 
in  the  case  of  a  child  above  the  age  within  which  the  company 
holds  itself  out  as  willing  to  carry  children  gratis,  but  taken  by 
the  mother  without  a  ticket,^  the  responsibilities  in  these  cases 
being  not  directly  founded  upon  contract. 

But,  thirdly.y  the  responsibilities  of  a  railway  company  or  any 
other  carrier  may  be  carried  still  a  step  further.  There  are  cases 
in  which  a  carrier  may  be  liable  for  injuries  receiv-ed  by  a  pas- 
senger when  carried  by  him,  although  no  contract  for  carriage 
may  exist  between  the  carrier  and  the  passenger,  or  any  person 
contracting  directly  for  his  carriage. 

In  Dalzell  v.  Tyrer,^  the  plaintiff  had  made  a  contract  with  a 
public  ferryman  under  which  the  latter  was  bound  to  carry  him 
daily  for  a  certain  period:  the  ferryman  being  unable,  upon  a 
particular  day,  to  work  the  ferry,  hired  a  boat  and  crew  for  the 
purpose,  and  an  accident  having  occurred  to  the  plaintiff  through 
the  mismanagement  by  the  crew  of  a  rope,  the  proprietor  of  the 
boat  and  crew  was  held  liable  to  him.*  So,  again,  a  case  of 
Reynolds  v.  North  Eastern  Ry.  Co.^  decided  that  where  a  passenger 
took  a  ticket  of  company  A.  for  a  journey  over  the  lines  of  com- 
panies A.,  B.,  and  C,  and  a  collision  having  occurred  on  the  B. 
railway  by  reason  of  the  train  in  which  the  plaintiff  was,  running 
into  trucks  negligently  left  on  the  line,  the  B.  company  were  liable 
to  the  plaintiff  in  an  action  of  negligence.^ 

In  Buxton  v.  The  North  Eastern  Ry.  Co.'  the  plaintiff  was  a 
passenger  by  the  defendants'  railway,  to  be  carried  from  Y.  to  T. 
To  reach  T.  it  was  necessary  to  travel  over  a  line  belonging  to 
another  company.  While  passing  over  this  connecting  line,  the 
train  in  which  the  plaintiff  was  came  into  collision  with  a  bullock, 
which  had  strayed  on  to  the  line  from  an  adjoining  field  by  break- 

1  Warshall  v.  York,  Newcastle,  &  Ber-  5  c.  p,  1868,  ex  rel.  amici. 

wick  Ry.  Co.,  11  C.  B.  655.  ^  Foulkes  v.  Metropolitan  Ky.  Co.,  5  C. 

2  Austin  V.  Great  Western  Ry.  Co.,  P.  Div.  157, 169,  jocr  Thesiger,  L.  J.  And 
L.  R.  2  Q.  B.  442.  see  Great  Northern  Ry.  Co.  v.  Harrison,  10 

8  E.  B.  &  E.  899.  E.x.  376;  Great  Western  Ky.  Co.  of  Canada 

*  See  also  Waland  v.  Elkins,  1  Stark,  v.  Braid,  1  Moo.  P.  C.  N.  s.  101;  Thomas 

272  ;  Fromont  v.  Couplaiul,  2  Ring.  170  ;  v.  Rhymney  Ry.  Co.,  L.  R.  6  Q.  B.  266  ; 

Davey  v.  Chamberlain,  4  Esp.  229;  Wheat-  Great  Western  Ky.  Co.  v.  Blake,  7  H.  &  N, 

ley  V.  Patrick,  2  M.  &  W.  650  ;  Dean  v.  987;  Wright  v.   Midland  Ey.  Co.,  L.  R. 

Branthwaite,     5    Esp.    35  ;    Sammell    v.  8  Ex.  137. 

Wright,   5    Esp.   263  ;   Houghton's   Case,  '  L.  R.  3  Q.  B.  549. 

cited  5  B.  &  C.   550. 


92  COMMENTARIES  ON  SALES.  [BOOK   III. 

ing  through  the  fence.  The  fence  was  in  fact  defective,  but  had 
been  lately  repaired,  and  was  apparently  in  good  condition.  The 
plaintiff,  being  injured  by  the  collision,  sought  to  recover  dam- 
ages from  the  defendants.  It  was  unanimously  held,  that  the 
contract  having  been  made  with  them,  they  were  just  as  much 
liable  for  negligence  happening  on  the  one  road  as  on  the  other.' 

Showing  how  entirely  the  matter  is  one  of  contract,  where  ^ 
there  was  a  clause  in  the  defendants'  contract  of  carriage  exempt- 
ing them  from  liability  on  the  connecting  line,  although  the  jury 
found  for  the  plaintiff,  the  verdict  was  set  aside,  and  was  entered 
for  the  defendants,  pursuant  to  leave  reserved.^ 

The  principle  of  law*  applicable  to  the  contracts  of  carriers  was 
applied  in  John  v.  Bacon,^  under  the  following  facts.  A.  agreed 
to  carry  B.  from  Milford  Haven  to  Liverpool.  The  mode  of 
transit  provided  was  that  B.  should  come  on  to  a  hulk  lying  in 
the  harbor  at  Milford  Haven,  and  waiit  till  a  steamer  came  and 
took  him  to  Liverpool.  On  the  hulk,  close  to  a  ladder  down 
which  B.  had  to  pass  to  reach  the  steamer,  was  a  large  hatchway, 
which  was  negligently  left  unguarded  and  improperly  lighted,  and 
B.  fell  through  it  and  was  injured.  The  hulk  belonged  to  a  third 
party,  and  A.  had  only  acquired  a  right  to  use  it  for  the  purpose 
of  embarking  passengers  on  his  steamer.  In  an  action  by  B. 
against  A.  for  the  injury  he  sustained,  the  court  held,  unani- 
mously, that  there  was  a  contract  by  the  defendant  to  carry  the 
plaintiff  from  the  shore  at  Milford  Haven  to  Liverpool,  and  if  so, 
it  was  part  of  that  contract  that  due  care  should  be  used  in  the 
whole  transit,  and  it  was  immaterial  whether  the  defendant 
employed  other  persons  to  assist  in  the  conveyance  of  the  passen- 
gers. The  passenger  was  entitled  to  the  exercise  of  due  care 
throughout.  It  is,  in  one  sense,  an  impersonal  obligation  on  the 
contracting  carrier  that  due  care  shall  be  used  in  providing  the 
means  of  transport,  and  in  the  management  of  them. 

The  same  principle  of  law  was  applied  in  Francis  v.  Cockrell.^ 
It  was  there  held,  that  where  a  man  causes  a  building  to  be  erected 

1  Blackburn,  J.,  said  :  "Where  a  rail-  3  a^ujJ  ggg  Baxendale  v.  The  Great  East- 
way  company  contracts  with  a  passenger  to  ern  Ry.  Co.,  L.  R.  4  Q.  B.  244  ;  Aldridge 
carry  hiiu  from  one  terminus  to  another,  i-.  Great  Western  Ry.  Co.,  15  C.  B.  N.  s. 
and  on  the  journey  the  train  has  to  pass  582. 

over  the  line  of  another  railway  company,  *  See  our  comments,  infra,  on  Graj'  v. 

the  company  issuing  the  ticket  incurs  the  Jackson,  51  N.   H.   9,  in  which  case  "the 

same  responsibility  as  that  other  company  position  is  improperly  taken  that  the  ques- 

over  whose  line  the  train  runs,   and    by  tion  in  all  these  cases  is  not  one  of  law 

whose  default  the  accident  happens,  would  at  all,  but  is  purely  one  of  fact  for  the 

incur  if  the  contract  to  carry  had  been  jury, 
entered  into  with  them."  6  L.  R.  5  C.  P.  437. 

2  In  Zunc  V.  The  Southeastern  Ry.  Co.,  «  L.  R.  5  Q.  B.  184. 
L.  R.  4  Q.  B.  539. 


PART  II.J   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.       93 

for  viewing  a  public  exhibition,  and  admits  persons  on  payment  of 
money,  the  contract  between  him  and  the  persons  admitted  is 
analogous  to  the  contract  between  a  carrier  and  his  passengers ; 
and  there  is  implied  in  such  contract  a  warranty,  not  only  of  due 
care  on  the  part  of  himself  and  his  servants,  but  also  of  due  care 
on  the  part  of  any  independent  contractor  who  may  have  been 
employed  by  him  to  construct  the  means  of  conveyance  or  support. 
Therefore,  where  the  defendant,  acting  on  behalf  of  himself  and 
others  interested  in  certain  races,  entered  into  a  contract  with  a 
third  party,  who  was  a  competent  person  to  be  so  employed,  to 
erect  and  let  to  them  a  grand  stand  for  the  purpose  of  viewing  the 
races  ;  and  the  defendant,  on  behalf  of  himself  and  his  colleagues, 
received  a  fee,  appropriated  to  the  race  fund,  from  every  person 
admitted,  the  plaintiff  being  one  of  them ;  and  the  stand  had 
been,  but  not  to  the  knowledge  of  the  defendant,  negligently  and 
improperly  constructed,  and  in  consequence  fell  and  injured  the 
plaintiff ;  it  was  held,  that  the  plaintiff  could  maintain  an  action 
against  the  defendant  for  the  damage  sustained,  although  the 
defendant  was  free  from  all  negligence,  and  had  employed  a  com- 
petent person  to  erect  the  stand. ^ 

The  plaintiff,  in  Thomas  v.  The  Rhymney  Ry.  Co.,^  took  a  ticket 
of  the  defendants,  a  railway  company,  as  a  passenger  from  A.  to 
C.  At  B.,  between  A.  and  C,  the  defendants'  line  joins  the  line 
of  the  T.  Company,  over  which  the  defendants  have  running  pow- 
ers from  B.  to  C.  on  payment  of  certain  tolls,  the  traffic  arrange- 
ments being  left  in  the  control  of  the  T.  Company,  and  the  station 
at  B.  belonging  to  the  latter  company,  and  being  in  their  exclu- 
sive control.  After  leaving  B.,  it  being  after  dark,  the  train  of 
the  defendants  in  which  the  plaintiff  rode  ran  into  a  train  of  the 
T.  Company,  and  the  plaintiff  was  injured  by  the  collision.  On 
the  trial  the  jury  found  that  the  defendants'  servants  were  guilty 
of  no  negligence,  and  that  the  collision  was  owing  to  the  negli- 
gence of  the  servants  of  the  T.  Company  in  sending  on  their  own 
train  without  the  proper  tail-light,  and  allowing  the  defendants' 
train  to  proceed  on  the  same  line  of  rails  too  soon  after  the  other 
train  without  giving  any  warning  to  the  driver  of  the  defendants' 
train.  On  this  finding  the  verdict  was  entered  for  the  defend- 
ants, with  leave  reserved  to  enter  it  for  the  plaintiff  if  the  court 
should  hold  that  the  defendants  were  liable  ^  for  the  negligence 
of  the  T.  Company.  The  Court  of  Queen's  Bench  having  unani- 
mously made  absolute  a  rule  to  enter  the  verdict  for  the  plain- 

1  And  see  Readhead  v.  Midland  Ry.  2  1,   r.  q  q.  b.  266. 

Co.,  L.  R.  2  Q.  B.  412  ;  Great  Western  ■''  Of  course,  in  law,  on  the  facts.  See 
Ry.  Co.  i;.  Blake,  7  H.  &  N.  987.  Gray  v.  Jackson,  51  N.  H.  9,  stated  infra. 


94 


COMMENTARIES   ON   SALES. 


[book   III. 


tiff,'   on   appeal   to   the  Exchequer  Chamber  the  judgment  was 
unanimously  sustained.^ 


1  Thomas  v.  Khymney  Ry.  Co.,  L.  E. 

5  Q.  B.  226. 

2  The  principle  of  law  upon  which  the 
case  was  decided  in  the  Exchequer  Cham- 
ber is  th\is  stated  by  Kelly,  C.  B.  (L.  R. 

6  Q.  B.  at  p.  273):  "Where  a  railway 
company  issues  a  ticket  for  a  journey,  in 
the  course  of  which  the  train  which  conveys 
the  passenger  has  to  pass  along  a  portion 
of  a  line  of  railway  belonging  to  another 
company  (whether  it  be  under  running 
powers'  or  whether  it  be  under  any  particu- 
lar contract  for  a  participation  in  profits 
or  otherwise),  the  contract  between  the 
railway  company  and  the  traveller  to  whom 
such  ticket  is  issued  is  upon  every  prin- 
ple  of  the  law  a  contract  not  only  that 
they  will  not  themselves  be  guilty  of  any 
negligence,  but  that  the  passenger  shall 
be  carried  with  due  and  reasonable  care 
along  the  whole  line  from  one  end  of  the 
journey  to  another."  The  learned  Chief 
Baron  said  further  :  "The  case  of  Buxton 
V.  Northeastern  Ry.  Co.,  L.  R.  3  Q.  B.  549, 
was  cited  among  other  cases.  That  case 
was  tried  before  me  ;  and  there,  although 
it  was  quite  clear  that  the  mischief  com- 
plained of  did  not  arise  from  the  negli- 
gence of  the  defendants,  but  from  the 
negligence  of  the  Midland  Railway  Com- 
pany, the  owners  of  the  intermediate  por- 
tion of  the  line  over  which  the  traveller 
had  to  be  conveyed,  still  it  did  not  occur 
either  to  the  counsel  at  the  trial  or  to  my- 
self that  that  made  any  difference  ;  and  I 
am  still  of  opinion,  upon  every  principle 
of  lam,  justice,  and  reason,  when  a  ticket 
is  issued,  say,  for  example,  at  Euston 
Square  Station,  for  the  conveyance  of  a 
passenger  to  Edinburgh,  or  still  further 
north,  where  the  traveller  may  in  the 
course  of  his  journey  have  to  pass  over 
several  lines  of  railway  belonging  to  differ- 
ent companies,  that  the  contract  which 
was  entered  into  by  the  company  that  is- 
sues the  ticket  is  a  contract  that  reasona- 
ble care  shall  be  exercised  by  all  by  wiiom 
exercise  of  care  is  necessary  for  the  reason- 
ably safe  conveyance  of  the  passenger  from 
one  end  of  the  journey  to  another.  The 
company  who  issued  the  ticket  received 
the  entire  consideration.  It  certainly  ap- 
pears to  me  to  make  no  more  difference 
that  they  are  enabled  to  carry  the  passen- 
gers along  a  portion  of  the  line  under 
some  arrangement  with  another  company 
than  if  it  were  their  own  line,  and  a  por- 
tion of  it  were  kept  in  repair  under  con- 
tract witli  some  persons  who  were  in  the 
habit,  for  a  due  consideration,  of  effecting 
repairs  for  railway  companies,  which  cer- 
tainly  would   not  exempt  the   company 


from  the  obligations  imposed  on  it.  The 
only  difference  is  that  they  perform  some 
part  of  their  contract  by  means  of  contracts 
or  arrangements  with  other  persons.  The 
contract  with  the  passenger  is,  as  I  have 
already  observed,  for  the  reasonably  safe 
conveyance  of  the  passenger  from  one  end 
of  the  journey  to  the  other.  They  receive 
the  consideration  or  remuneration  for  the 
undertaking  into  which  they  enter,  and  it 
appears  to  me  that,  so  far  as  anything  that 
may  come  within  (to  adopt  the  expression 
which  has  been  well  used  in  the  course 
of  the  argument)  the  compass  of  railway 
management,  if  in  consequence  of  any 
negligence  on  any  portion  of  the  line, 
from  one  end  of  the  line  to  the  other,  a 
mischief  occurs  to  the  passenger,  he  is 
entitled  to  maintain  an  action  again-st  the 
company  with  whom  he  contracted  for  his 
safe  conveyance  from  one  end  of  the  jour- 
ney to  the  other."  Thomas  v.  Rhymney 
Ry.  Co.,  L.  R.  6  Q.  B.  at  p.  273.  But  in 
Wright  V.  The  Midland  \\\.  Co.,  L.  R. 
8  Ex.  137,  the  N.  Company  had  statutory 
authority  to  run  over  a  portion  of  the  de- 
fendants' line,  paying  a  certain  toll  to  the 
defendants.  Tlie  signals  at  the  point  of 
junction  between  the  two  lines  were  under 
the  control  of  the  defendants.  Owing  to 
the  servants  of  the  N.  Company  negli- 
gently disobeying  these  signals,  a  train  of 
the  N.  Company  ran  into  a  train  of  the  de- 
fendants in  which  the  plaintiff  was,  caus- 
ing him  damage.  There  was  no  negli- 
gence on  the  part  of  any  of  the  defendants' 
servants.  In  an  action  for  injuries  sus- 
tained, brought  by  the  plaintiff  against 
the  defendants,  it  was  held  that  he  was 
not  entitled  to  recover.  In  this  case 
Cleiisby,  B.,  at  p.  144  et  seq.,  distin- 
guishes Thomas  v.  Rhymney  Ry.  Co.,  6 
Q.  B.  266,  on  the  ground  that  the  railway 
ought  to  be  in  a  reasonably  fit  state,  free 
from  obstruction  so  far  as  regards  the  man- 
agement and  care  of  the  railway  ;  but  that 
the  contract  is  not  that  tiie  railway  shall 
be  in  a  reasonably  fit  state  so  far  as  regards 
the  acts  of  third  parties,  whoever  they  may 
be,  who,  whether  negligently  or  not,  cause 
some  obstruction,  adding  :  "  1  cannot  con- 
nect with  the  management  of  the  railway 
something  which  is  the  direct  effect  not  of 
defective  regulations  of  the  company,  nor 
of  any  act  to  which  they  were  parties,  not 
of  the  neglect  of  some  persons  over  whom 
they  have  no  control  whatever,  and  of 
whose  services  they  do  not  make  use." 
.{^nd  see  Rcadhead  i'.  The  Midland  Ry.  Co., 
L.  R.  2  Q.  B.  412.  On  the  subject  we  are 
more  particularly  considering,  Cleasby,  B., 
says;   "1  quite  agree  that  a  contract  for 


PART    II.]       CONTRACTS    FOll   THROUGH    CARRIAGE   OF   GOODS. 


95 


Having  thus  exhaustively  considered  the  English  cases  on  the 
subject,  we  turn  now  to  an  examination  of  the  decisions  in  this 
country. 

It  must  be  kept  in  mind  that  in  all  the  English  cases  the  ques- 
tion as  to  the  liability  of  the  contracting  railway  is  simply  treated 

carriage  from  one  place  to  another  extends 
over  the  whole  journey,  whether  upon  the 
line  of  the  contracting  company  or  not ; 
and,  further,  that  it  is  the  carrier's  duty 
to  use  due  and  reasonable  care  during  the 
whole  journey.  And  1  think  that  due  and 
reasonable  care  extends  to  everything  that 
is  made  use  of  by  the  contracting  party 
during  the  course  of  that  journey.  For 
instance,  as  regards  the  construction  of  a 
railway,  it  embraces  a  contract  that  the 
rails  themselves  shall  be  in  a  sound  and 
efficient  state,  so  far  as  due  care  can  make 
them  so ;  and  if  they  were  worn  out  on  a 
part  of  the  railwa}'  not  belonging  to  the 
contracting  company,  and  which,  there- 
fore, they  had  not  the  power  to  repair,  I 
agree  that  the  decisions  would  establish 
that  they  would  be  liable  for  a  want  of 
care  in  those  rails  not  being  in  a  proper 
state  if  any  damage  was  sustained  thereby; 
and  the  same  may  be  said  if  the  switches 
or  anything  of  that  kind  were  defectively 
constructed,  and  if  it  were  made  out  that 
in  the  course  of  a  journey  over  the  rails 
an  accident  arose  from  that  defective  con- 
struction. So,  again,  as  regards  persons 
employed  by  the  carrying  company  or 
made  use  of  by  them.  The  management 
of  the  stations,  for  examjjle,  is  in  the 
hands  of  certain  i)ersons  ;  certain  regula- 
tions are  made  ;  and  1  will  suppose  that 
whilst  the  regulations  are  proper  and  suf- 
ficient the  persons  who  are  entrusted  with 
the  duty  of  enforcing  them,  as  in  the 
Rhymney  Case,  fail  to  do  so,  and  an  acci- 
dent occurs  in  consequence.  In  such  a  case 
the  contracting  company  in  performing 
their  contract  make  use  of  those  persons, 
and  although  the  arrangements  at  the  sta- 
tion may  be  in  other  hands,  still  the  car- 
rying company  would  be  responsible.  That 
seems  to  me  consistent  with  reason,  and 
certainly  is  consistent  with  the  authori- 
ties that  have  been  referred  to.  It  is  con- 
sistent with  the  Great  Western  Ry.  Co.  v. 
Blake,  7  H.  &  X.  987,  where  the'decision 
is  put  upon  the  footing  of  there  being 
neglect  in  allowing  that  to  be  upon  the 
line  which  ought  not  to  be  there,  and  it 
is  also  consistent  with  Thomas  v.  Rhymney 
Ry.  Co.,  L.  R.  5  Q.  B.  226.  In  the  lat- 
ter case  I  was  a  party  to  the  judgment  in 
the  Exchequer  Chamber,  and  ac(iuiesced 
in  it  upon  the  ground  referred  to  in  that 
passage  which  occurs  in  the  Lord  Chief 
Baron's  judgment  (at  p.  274),  where  he 
puts  the  case  as  one  of  negligence  in  some- 


thing connected  with  the  management  of 
the  railway  during  the  journey  on  wliicli 
the  accident  took  place."  Wright  v.  Mid- 
land Ry.  Co.,  L.  R.  8  Ex.  at  p.  144.  This 
case  is  distinguished  from  those  for  the 
carriage  of  goods,  for  there  the  carriers  ar-i 
liable  as  insurers.  But  in  the  case  of  the 
carriage  of  passengers,  the  contract  is  that 
all  persons  connected  with  the  carrying, 
and  with  the  means  and  appliances  of  the 
carrying,  with  the  carriages,  the  road,  the 
signalling,  and  otherwise,  .shall  use  care 
and  diligence  so  that  no  accident  shall 
happen.  But  they  contract  no  further. 
They  have  no  contract  or  duty  that  stran- 
gers to  the  railway,  or  persons  who  have 
occasion,  and  who  lawfully  may  use  the 
line,  shall  not  be  guilty  of  any  negligence 
or  misconduct.  Per  Bramwell,  B.,  Ibid., 
at  p.  140.  And  see  Read  head  v.  Midland 
Ry.  Co.,  L.  R.  2  Q.  B.  412. 

Hall  V.  Northeastern  Ky.  Co.,  L.  R.  10 
Q.  B.  437,  was  something  like  Bristol  & 
Exeter  Ry.  Co.  ■;;.  Collins,  7  H.  L.  Ca.s.  194, 
supra.  But  instead  of  the  condition  ex- 
empting from  loss  applying  only  to  the  line 
of  the  contracting  company,  as  in  this  lat- 
ter case,  in  this  case  it  was  properly  held 
to  be  a  pait  of  the  entire  contract,  and 
applicable  to  the  entire  route.  The  plain- 
titi'  was  in  charge  of  a  quantity  of  sheep 
shipped  at  Angerton,  Scotland,  for  New- 
castle, England,  by  the  North  British 
Railway  Company  under  a  through  con- 
tract. The  line  only  extended  to  Morpeth, 
where  it  connected  with  the  defendants' 
line,  at  which  point  the  cattle-trucks  and 
the  carriage  in  which  the  plaintiff  was, 
were  attached  to  the  defendants'  train. 
The  plaintiff  was  travelling  under  a  free 
pass  over  the  whole  route,  the  pass  being 
issued  under  the  condition  that  he  agreed 
to  travel  at  his  own  risk.  But  for  this 
he  would  have  had  to  paj'  fare  as  a  pas- 
senger. After  leaving  Morpeth  the  train  in 
which  the  plaintiff  travelled  was  run  into 
by  another  train,  owing  to  the  negligence 
of  the  defendants'  servants  in  charge  of 
the  other  train,  and  the  plaintiff  received 
injuries  from  the  collision.  On  the  trial 
the  jury  found  for  the  plaintiff ;  but  pur- 
suant  to  leave  reserved  the  verdict  was  re- 
versed,  the  Court  of  Queen's  Bench  unani- 
mously holding  that  the  contract  was  an 
entire  one  for  the  whole  route,  vviiich  pro- 
tected both  companies.  See  Carr  v.  Lan- 
cashire &  Yorkshire  Ry.  Co.,  7  Ex.  707. 


96 


COMMENTARIES   ON   SALES. 


[book    III. 


as  matter  of  contract,  and  the  railway  is  held  liable  or  not  lia- 
ble for  a  loss  caused  by  a  connecting  railway,  just  as  a  fair  con- 
struction of  the  contract  will  show  whether  or  not  the  contract 
of  the  receiving  railway  extended  to  the  carriage  beyond  its  own 
immediate  line.  Thus,  in  Gilbert  v.  Dale,^  Syms  v.  Chaplin,^  and 
in  Garside  v.  The  Trent  Navigation  Co.^  (stated  supra,  p.  IQ  et 
sea.),  the  contracts  all  showed  that  the  liability  did  not  extend 
beyond  the  immediate  line  of  the  receiving  railway  or  contractor, 
and  the  courts  in  these  and  other  cases  stated  by  us  {supra) 
so  held.  On  the  other  hand,  in  Muschamp  v.  Lancaster  Ry.  Co.,* 
the  railway  receiving  the  goods  to  be  carried  an  entire  distance 
at  one  through  rate,  no  limitation  on  their  undertaking  being  ex- 
pressed or  implied,  it  was  held,  very  reasonably  we  think,  that 
this  was  prima  facie  evidence  of  an  undertaking  of  that  company 
to  carry  the  goods  to  the  place  of  their  destination.  The  court 
so  charged  and  the  jury  so  found ;  both  the  charge  and  finding 
being  sustained  unanimously  by  the  full  court. 

We  think  a  careful  perusal  of  the  English  cases,  as  we  have 
fairly  presented  them,  will  show  that  there  is  no  antagonism  in 
principle  between  these  cases,  although  it  has  been  thought  other- 
wise in  this  country.^  In  all  of  these  cases  the  question  was 
treated  as  one  of  fact,  the  construction  of  the  particular  contract 
depending  on  the  particular  facts  connected  with  it.  We  think 
the  misapprehension  on  this  point  that  has  largely  existed  in  this 
country  has  led  to  a  fancied  difference  between  the  English  and 
many  of  the  American  decisions  in  cases  where  no  such  differ- 
ence really  exists. 

The  statement  of  what  is  sometimes  called  the  English  rule  in 
the  matter  is,  as  will  be  seen  by  our  very  full  analysis  of  the  Eng- 
lish cases,  simply  absurd.  Thus  Redfield,  in  his  Carriers,^  states 
the  so-called  "  rule  "  absolutely,  without  any  exception  or  qualifi- 
cation, and  utterly  irrespective  of  what  the  contract  in  the  par- 
ticular case  is,  by  the  facts,  shown  to  be ;  that  "  where  the  loss  is 
shown  to  have  occurred  upon  one  of  the  subsequent  roads  in  the 
route,  it  is  held  that  the  contract  is  exclusively  with  the  first 
company,  and  that  there  is  no  right  of  action  against  any  of  the 
subsequent  companies  on  the  route." 

It  is  scarcely  necessary  for  us  to  say,  after  the  full  statement 
of  the  English  cases  which  we  have  made,  that  this  is  entirely 
incorrect,  or,  to  say  the  very  least,  is  greatly  misleading.  The 
case  cited  for  this  proposition  is  Bristol  &  Exeter  Ry.  v.  Collins." 


1  5  A.  &  E.  543. 

2  6  A.  &  E.  634,  643. 
8  4  T.  R.  581. 
*  8  M.  &  W,  421. 


See  supra,  p.  78. 


5  See  Redf.  on  Car.  §  181,  distinctly  so 
stating. 

6  §  180. 

'  7  H.  L.  Cas.  194. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.       97 

But  while,  as  we  have  shown,  we  think  the  decision  in  that  case, 
on  the  construction  of  the  contract  involved  in  it,  one  of  the 
<^reatest  doubt,^  the  unanimous  judgment  of  the  Exchequer  Cham- 
ber and  the  answers  of  four  of  the  six  judges  who  were  called  in 
being  adverse  to  the  decision ;  yet  it  was  simplj'  a  question  on 
the  facts  of  the  case  as  to  whether  the  contract  of  the  receiving 
company  was  to  carry  over  the  entire  route  or  not,  and  it  was 
held,  improperly  we  think,  that,  under  the  facts  of  the  case,  it 
was.  But,  as  we  have  shown,  the  whole  case  clearly  shows  that 
if  the  contract  had  appeared  more  clearly,  so  that  it  would  have 
been  "  incapable  of  being  misunderstood,"  as  Lord  Cranworth  ex- 
pressed it,  that  it  was  a  contract  by  the  receiving  railway  to  carry 
only  over  their  own  railway,  and  then  to  deliver  merely  to  the 
connecting  railway  to  be  forwarded,  this  latter  railway  would 
have  been  liable. 

The  misapprehension  of  Redfield  is  even  more  clearly  seen  in 
section  181  of  his  Carriers,  where  he  says  that  the  rule  laid  down 
in  the  earlier  English  cases  is,  "  that  the  carrier  is  only  liable  for 
the  extent  of  his  own  route,  and  for  the  safe  storage  and  delivery 
to  the  next  carrier."  There  are  no  English  cases,  either  early  or 
late,  which  lay  down  any  such  rule  as  this.  The  cases,  as  we 
have  shown,  all  put  it  simply  as  a  question  of  what  the  contract 
is  in  the  particular  case. 

The  only  case  cited  by  Redfield,  J.,  for  the  latter  of  his  propo- 
sitions is  Garside  v.  Trent  &  Mersey  Navigation  Co.^  But  that 
case,  as  we  have  shown,  was  simply  one  of  contract,  and  that,  too, 
an  express  one,  by  the  receiving  company  to  carry  the  goods  from 
Stourport  to  Manchester,  and  then  to  forward  them  from  Man- 
chester to  Stockport;  and  it  was,  clearly,  correctly  held,  under 
that  contract,  that  the  liability  of  the  receiving  company  as  a 
carrier  ended  at  Manchester.  This  case,  so  far  from  laying  down 
a  different  rule  from  that  in  Bristol  &  Exeter  Ry.  v.  Collins,^  is 
in  perfect  harmony  with  it.  The  doubt  in  this  latter  case,  which, 
we  think,  under  the  facts,  was  not  well  founded,  was  as  to  whether 
that  portion  of  the  way-bill  which  it  was  held  showed  a  contract 
to  carry  the  entire  distance  was  modified  or  qualified  by  other 
parts  of  it,  so  as  to  make  out  that  it  was  such  a  contract  as 
existed  in  Garside  v.  Trent  &  Mersey  Navigation  Co.,^  and,  with 
a  very  great  deal  of  doubt  and  difference  of  opinion,  it  was  held 
that  it  was  not.  But  if,  as  in  this  latter  case,  it  had  sufficiently 
appeared  to  the  House  of  Lords,  as  it  did  to  the  Exchequer  Cham- 

1  Each  of  the  four  Law  Lords  who  de-  *  4  T.  R.  581. 

oided  the  case,  himself,  on  one  ground  or  ^  7  h.  L.  Gas.  194. 

another,  casting  doubt  on  the  case.  *  4  T.  R.  581. 

VOL.   II.  7 


98  COMMENTARIES   ON   SALES.  [BOOK    III. 

ber,  that  the  contract  of  the  receiving  company  was  to  carry  the 
goods  over  their  portion  of  the  route  only,  and  to  deliver  them  to 
the  connecting  company,  to  be  forwarded  to  the  ultimate  destina- 
tion, then,  in  perfect  harmony  with  Garside  v.  Trent  &  Mersey 
Navio;ation  Co.,^  it  would  have  been  held  by  the  House  of  Lords, 
as  it  was  unanimously,  and,  we  think,  correctly,  held  by  the  Ex- 
chequer Chamber,  that  the  connecting  company  was  liable  for  the 
loss  of  the  goods,  as  carriers,  while  in  their  possession ;  and  that, 
again  differing  with  Redfield  on  Carriers,^  their  common-law  lia- 
bility for  such  loss  was  not  affected  by  the  clause  in  the  con- 
tract exempting  the  receiving  company  from  a  loss  of  the  same 
character. 

The  same  mistake  as  to  the  effect  of  the  English  decisions, 
made  by  Redfield  in  his  Carriers,  is  repeated,  verbatim,  in  his 
Railways. 3 

In  another  American  work  on  Carriers,*  it  is  more  correctly 
stated,  that  "  Carriers  may  frequently  become  forwarders  only 
when  the  goods  are  consigned  to  points  beyond  the  termini  of 
their  own  lines  ;  and  it  frequently  becomes  difficult  to  determine 
whether,  under  the  particular  circumstances  of  the  case,  they 
should  be  held  liable  for  the  safety  of  the  goods  throughout  the 
whole  line  of  transit  to  destination,  though  extending  beyond  the 
termination  of  their  routes ;  or  whether,  having  transported  them 
as  far  as  their  routes  extend,  and  there  having  safely  delivered 
them  to  another  connecting  carrier  to  complete  the  transporta- 
tion, they  are  not  to  be  considered  as  having  acted  as  forwarding 
agents  merely  as  to  such  further  carriage,  and  therefore  no  longer 
responsible.  It  is  well  settled,  however,  that  the  carrier  may  con- 
tract to  carry  to  a  point  beyond  the  terminus  of  his  own  line  so 
as  to  become  liable  for  the  delivery  at  such  point,  and  that  the  lia- 
bility thus  attaching  at  the  commencement  will  continue  through- 
out the  whole  transit.  And  when  he  has  thus  undertaken  for  the 
transportation  of  the  goods  throughout  to  destination,  all  con- 
necting lines  of  carriers  employed  in  furthering  and  completing 
such  transportation  become  his  agents,  for  whose  defaults  he  be- 
comes responsible  to  the  owner  of  the  goods." 

This  is  stated  as  the  general  common-law  rule,  and  while,  as 
far  as  it  goes,  it  not  inaccurately  states  the  law  as  we  have  shown 
it  to  be  settled  in  England,  and  is  very  far  from  being  in  accord 
with  the  manifestly  incorrect  statement  by  Redfield,  in  his  works 
on  Railways  and  Carriers,  numerous  American  cases  are  cited  to 
show  that  this  is  the  well-settled  law  here,  although  a  very  differ- 

M  T.  R.  581.  8  Vol.  ii.  129-132,  6th  ed. 

2  §  180.  *  Hutchinson,  §  145. 


PART  II. J   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.       99 

ent  impression  is  conveyed  of  the  law  in  this  country  by  the  state- 
ments of  Redfield  in  the  context  to  those  passages  which  we  have 
quoted  from  his  works  on  Carriers  and  Railways. 

We  find  that  Hutchinson,  in  referring  to  the  holding  in  Mus- 
champ  V.  The  Lancaster  &  Preston  Ry.  Co./  makes  a  statement 
which,  on  its  face,  goes  far  to  show  the  correctness  of  the  Eng- 
lish decisions.  The  reference  by  Hutchinson  ^  to  which  we  have 
alluded,  is  as  follows :  "  This  rule  has  been  ever  since  adhered  to 
without  question  or  dispute  by  the  English  courts,  and  no  princi- 
ple is  better  settled  in  that  country  than  that  which  obliges  the 
carrier,  when  he  accepts  goods  for  transportation,  the  destina- 
tion of  which  is  one  to  which  he  himself  does  not  ca7'ry  because  off 
or  beyond  his  own  route,  to  nevertheless  take  upon  himself  the 
responsibility  for  both  the  carriage  and  the  safety  of  the  goods  to 
destination  ;  and  if  they  be  lost  upon  the  route,  no  matter  by 
whom,  he  becomes  liable  to  the  owner  for  the  loss,  unless  he  has 
protected  himself  against  such  liability  by  contract." 

In  the  most  of  the  English  cases  a  traffic  receipt  or  way-bill  is 
signed  shelving  the  destination  of  the  goods,  but  whether  this  is 
done  or  not,  where  the  company  expressly  (as  it  does  in  many  of 
the  English  cases)  receive  the  goods  for  transportation  to  a 
designated  place,  and  at  a  fixed  rate  for  the  whole  route,  the 
English  cases  clearly  hold  that  this,  when  not  otherwise  qualified, 
primd  facie  implies  a  contract  by  the  receiving  company  to  trans- 
port the  goods  to  the  designated  place  for  which  the  round  sum  is 
charged. 

Now,  suppose  a  traffic  receipt,  way-bill,  or  bill  of  lading,  as  the 
instrument  is  indifferently  called,  is  so  signed  for  the  conveyance 
of  goods  to  a  designated  place  off  a  railroad  route  altogether,  and 
for  which  one  entire  sum  is  paid,  surely  that  as  much  makes  a 
contract  by  the  company  to  deliver  the  goods  to  the  named  desti- 
nation, as  though  such  destination  were  on  its  line  of  railway. 
And  that,  in  principle,  is  all  that  the  English  cases  hold. 

Whether  the  facts  of  the  receipt  of  the  goods  for  transporta- 
tion to  a  designated  place,  and  the  one  charge  therefor,  whether 
paid  at  one  end  of  the  route  or  to  be  paid  at  the  other  being  im- 
material, appear  by  the  actual  acceptance  of  the  goods  subject  to 
such  a  charge,  or  by  statement  in  a  way-bill  or  bill  of  lading, 
is  simply  a  matter  of  the  mode  of  proving  the  contract ;  but  by 
no  means  changes  the  nature  of  the  contract. 

What,  on  the  face  of  the  contract,  is  its  nature  ?  Is  it  not,  that 
the  goods  are  to  be  carried  to  the  designated  place,  for  which  the 
one  round  sum  is  to  be  paid  ?  And  if  so,  who  are  the  parties  to 
1  8  M.  &  W.  421.  2  §  147. 


100 


COMMENTARIES   ON   SALES. 


[book   III. 


the  contract  ?  Is  it  not  self-evident  that  they  are  the  shipper  and 
the  receiver  ;  no  other  party  being  named,  or  in  any  way  made 
a  party  to  the  contract  ?  If  the  receiver  obtain  the  goods  for  con- 
veyance to  a  designated  place  for  a  round  sum  of  money,  is  he 
not  prima  facie  the  contractor  to  do  so ;  and,  if  he  wish  another 
to  share  his  liability,  must  not  that  be  made  a  specific  part  of 
the  contract,  in  order  to  affect  the  shipper,  the  other  party  to  the 
contract  ?  We  can  see  no  reason  in  the  world  for  thinking  other- 
wise, and  therefore,  see  no  reason  for  questioning  the  soundness 
of  the  unbroken  series  of  English  cases  which  so  decide  ;  the 
receipt  of  the  goods  marked  to  a  designated  place  being  some 
evidence  [priind  facie')  of  such  a  contract. 

Before  examining  some  of  the  American  cases,  we  would  point 
out  and  correct  an  error  into  which  Hutchinson  has  fallen.  He 
says  :  "  And  not  only  does  the  first  or  contracting  carrier  [mark  ! 
^^  contracting  ca,rner  I  ^'1  become  liable,  no  matter  by  whom  the 
goods  may  be  lost,  but  it  becomes  exclusively  responsible  and  can 
alone  be  sued  by  the  aggrieved  party ;  and  any  attempt  to  hold 
the  subsequent  or  connecting  carrier  liable  for  the  loss,  although 
it  may  have  occurred  from  its  negligence  or  fault,  must  fail  for 
the  want  of  privity  of  contract  between  such  carrier  and  the  in- 
jured party."  This  is  inaccurate.  Although  the  shipper  cannot 
recover  on  the  contract,  against  the  connecting  carrier  unless  as 
a  partner,!  or  otherwise,  for  instance  as  principal,  he  is  a  party 
to  the  contract ;  yet,  as  the  English  cases  manifestly  show,  as  we 
have  pointed  out,^  where  the  "fault"  is  one  of  misfeasance,  the 
subsequent  or  connecting  carrier  is  also  liable.  And,  in  this  case, 
the  party  aggrieved  has  his  remedy  against  the  party  with  whom 
he  contracted  under  the  contract,  or  against  the  party  doing  the 
wrong,  for  the  wrong  done.  We  think  this  principle  is  thoroughly 
correct,  assuming,  as  we  think,  as  a  matter  of  law,  we  are  bound 
to  do,  that  it  is  only  the  party  contracting  who  is  liable  on  his 
contract ;  that,  as  far  as  the  matter  lies  in  contract,  the  remedy 
under  the  contract  is  against  the  contracting  party  ;  where  it  lies 
in  tort  for  a  wrong  done,  independent  of  contract,  then  there  is 
a  remedy  against  the  wrongdoer  for  misfeasance. 

Redfield,  in  his  works  on  Carriers  ^  and  Railways,*  says  :  "  The 


1  "  Sometimes  the  arrangements  of  ad- 
joining routes  have  been  held  to  constitute 
a  partnership  ;  as  where  they  have  put 
their  earnings  into  a  common  fund,  and 
divided  it  according  to  the  length  of  their 
respective  lines,  under  such  an  agreement 
as  appeared  in  the  case  of  Champion  v. 
Bostwick,  18  Wend.  175.  Or  if  they  have 
jointly  employed  an  agent,  although  they 


were  not  partners  in  other  respects,  they 
have  been  held  jointlv  liable  for  his  mis- 
feasance. Cobb  V.  Abbot.  14  Pick.  289." 
Darling  v.  Boston  &  JVorcester  Rd.,  11 
Allen,  296.  And  see  the  Irish  cases  stated 
supra,  p.  87  et  scq. 

2  See  supra,  p.  88  et  seq. 

3  §  181. 

*  Vol.  ii.  p.  131,  6th  ed. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      101 

general  view  of  the  American  courts  upon  this  subject  is,  that 
in  the  absence  of  special  contract,  the  rule  laid  clown  in  the  earlier 
English  cases,  that  the  carrier  is  only  liable  for  the  extent  of  his 
own  route,  and  for  the  safe  storage  and  delivery  to  the  next 
carrier,  is  the  more  just  and  reasonable  one,  and  this  is  the  doc- 
trine which  seems  likely  to  prevail  in  this  country,  although  there 
is  no  doubt  some  argument  to  be  drawn  from  convenience  in  favor 
of  the  English  rule." 

We  have  already  pointed  out  that  there  is  no  difference  what- 
ever upon  the  subject  between  the  early  and  late  decisions  in  the 
English  courts,  but  that,  in  all  of  them,  it  is  simply  a  question 
as  to  what  is  the  express  or  implied  contract  in  the  particular 
case.  The  phrase,  "  special  contract,"  used  by  Redfield,  and  which 
is  found  repeated  in  a  great  number  of  the  American  cases  in  the 
most  uncertain,  indefinite  manner,  is  itself,  in  this  connection,  in- 
accurate, or  meaningless.  Contracts  are  express  or  implied,  and 
a  contract,  or  "  special  "  contract  (which,  in  this  connection,  really 
means  nothing  more  than  a  contract)  may  arise  from  the  ex- 
pressed agreement  of  tlie  parties,  or  may  be  implied  from  the 
circumstances  connected  with  the  case.  But  the  phrase  in  con- 
nection with  the  contract  of  a  carrier  to  deliver  goods  at  a  point 
beyond  his  own  particular  route,  that  he  is  not  bound  to  do  so 
"  except  by  special  contract,"  while  we  believe  it  has  led  to  many 
incorrect  decisions  in  this  country,  and  is  stated  to  be  the  Ameri- 
can rule,  seems  to  mean,  as  far  as  any  sense  at  all  can  be  made 
out  of  it,  not  that  the  contracts  of  carriers  to  so  bind  them 
must  always  be  express  contracts,  but  while  such  contracts  may 
be  implied  in  some  cases,  it  will  not  be  implied,  simply  because 
the  carriers  receive  the  goods  for  shipment  marked  for  a  desig- 
nated place,  that  they  thereby  contract  to  carry  and  deliver  the 
goods  to  that  place  ;  particularly,  it  appears,  if  that  place  happen 
to  he  beyond  their  own  particular  route.  But  it  is  evident  that 
if  they  receive  goods  deliverable  at  a  point,  as  designated  by  the 
address,  on  or  within  their  own  particular  line  or  limits,  it  is 
clearly  implied,  —  particularly,  as  they  invariably  do  in  such  case, 
if  they  receive  pay  for  the  entire  distance,  —  that  they  contract  to 
carry  and  deliver  the  goods  to  and  at  that  designated  place  ;  then, 
why  may  it  not  also  be  implied  that  they  contract  to  carry  and 
deliver  goods  so  designated  by  the  address  on  the  goods  which 
they  receive  for  conveyance  and  delivery  to  the  place  designated 
by  the  address,  even  though  that  point  be  at  a  place  beyond  their 
own  immediate  line  or  limits  (but  which  fact  may  be  entirely  un- 
known to  the  shipper),  particularly,  as  they  so  often  do,  if  they 
receive  pay  for  such  carriage  for  the  entire  distance  ? 


102 


COMMENTARIES   ON   SALES. 


[book   III. 


All  that  the  English  cases  hold  is  that,  prima  facie,  when  they 
receive  goods  for  shipment  and  carriage  which  are  addressed  to 
a  particular  place,  this  is  evidence  of  their  impliedly  undertaking 
to  carry  them  to  that  place,  where  their  regular  business  is  that 
of  carriers  ;  and  that  this  implication  is  strengthened  when,  with- 
out question  or  explanation,  the  carriers  receive  goods  for  car- 
riage on  which  their  proposed  destination  is  designated  by  the 
address,  and  receive  pay  for  their  conveyance  for  the  entire 
distance. 

But,  on  the  other  hand,  when,  as  in  such  a  case  as  Upston  v. 
Clark,!  followed  and  approved  by  Gilbert  v.  Dale,^  goods  so  desig- 
nated by  address  are  delivered  to  parties  merely  for  booking  and 
forwarding,  for  which  a  small  sum  only  is  paid  ;  or,  as  in  Syms  v. 
Chaplin,3  ^nd  Garside  v.  The  Trent  Nav.  Co.,*  goods  are  expressly 
received  by  carriers  to  be  conveyed  a  certain  distance  and  then 
forwarded,  no  such  implication  arises;  and,  under  such  facts, 
there  is  not  even  prima  facie  evidence  of  any  responsibility  be- 
yond the  limits  within  which,  impliedly  or  expressly,  the  respon- 
sibility is  confined. 

So,  again,  as  in  the  case  of  Scothorn  v.  South  Staffordshire  Ry. 
Co.,'^  under  the  original  contract,  where  the  goods  were  to  be  de- 
livered to  the  ship  Melbourne  expressly,  though  they  were  in- 
tended to  go  by  her  to  Australia,  the  liability  of  the  carrier 
terminated  at  the  ship,  as  there  was  not,  in  that  case,  anything 
expressly  or  impliedly  to  carry  it  further. 

We  think  that  not  a  little  confusion  has  arisen  in  many  of  the 
cases  in  this  country  —  as  clearly  has  been  the  case,  as  we  have 
shown,  with  Judge  Redfield  in  his  works  on  Carriers  and  Rail- 
ways —  from  the  misapprehension  of  what  the  English  cases  really 
hold  on  the  subject.  Let  us  illustrate.  Suppose  A.,  who  has 
been  in  the  habit  of  purchasing  goods  on  credit  at  the  store  of  B., 
goes  into  the  store,  and  asks  a  clerk  for  an  article  of  goods,  asks 
the  price  of  it,  and  takes  it  away  with  him  without  paying  for  it, 
and  saying  nothing  further ;  in  an  action  against  A.  for  the  price 
for  goods  sold  and  delivered,  the  court,  on  such  facts,  could  prop- 
erly tell  the  jury  that  this  was  a  primd  facie  case  against  A.  for 
goods  sold  and  delivered.  But  if  A.  showed  in  answer  that  it 
was  not  a  sale  at  all,  —  that  he  simply  got  the  goods  under  the 
order  and  for  the  use  of  B.  himself,  and  that  he  used  them  for  B.; 
or  that  he  had  got  them  for  C,  who  had  borrowed  them  from  B., 
and  that  he  had  delivered  them  to  C,  —  the  evidence  of  a  sale 


1  2  C.  &  P.  598. 

2  5  A.  &  E.  543. 
8  6  A.  &  E.  634. 


*  4  T.  E.  581. 
s  8  Ex.  341. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      103 

and  delivery,  prinid  facie,  would  be  overborne.  Or,  again,  if  a 
collector  and  deliverer  of  parcels,  whose  business  was,  and  was 
generally  known  to  be,  the  cuUection  and  delivery  of  parcels  in  a 
city  only,  received  for  delivery  a  parcel  addressed  to  a  place  within 
the  city,  prima  facie  this  evidence  would  show  an  implied  con- 
tract by  him  to  deliver  the  parcel  to  the  place  of  its  address,  and 
so,  clearly,  the  court  would  be  justified  in  directing  a  jury.  But, 
in  such  a  case,  if  he  received  a  parcel  addressed  to  a  remote  place, 
far  removed  from  the  city,  and  addressed  also,  "Pgr  Wells,  Fargo, 
&  Co.'s  Express,"  which  had  one  of  their  offices  in  the  city,  and 
he  delivered  the  parcel  to  the  express  office,  this  would  be  like  the 
booking  cases  in  England,  and  there  the  facts  would  not  show  a 
case  from  which  even  prinid  facie  it  could  be  implied  that  he 
had  contracted  to  carry,  or  be  responsible  for  the  carriage  of,  the 
goods  to  the  remote  place ;  more  particularly  if,  as  in  such  a  case 
he  would  do,  he  received  payment  only  for  the  carriage  and  de- 
livery to  the  express  office. 

Again,  if,  instead  of  the  delivery  of  a  parcel  to  a  regular  parcel 
collector,  a  parcel,  addressed  to  a  particular  place  in  a  city,  were 
delivered  to  a  post-office  collector  of  letters  and  parcels  through 
the  city,  whose  business  was,  and  was  known  to  be,  merely  to  col- 
lect them  and  take  them  to  the  post-office  for  distribution,  there 
then  could  be  no  room  for  an  implication  that  there  was  any  other 
contract  or  duty  on  the  part  of  the  carrier  than  to  take  the  parcel 
to  the  post-office.  Or,  again,  if  a  local  expressman,  in  the  habit 
of  collecting  parcels,  trunks,  goods,  etc.,  for  delivery  to  different 
railways  and  canals,  collected  articles  addressed  to  various  remote 
places,  and  addressed  via  different  routes,  or  per  different  rail- 
ways, etc.,  and  delivered  them  to  go  as  addressed,  no  implication 
could  arise  that  he  had  any  further  responsibility  for  their  de- 
livery at  their  ultimate  destination,  particularly  if  in  such  case 
he  only  received,  as  he  would  only  be  legally  entitled  to  receive 
(if  the  question  came  up  in  that  shape),  payment  for  delivery 
within  his  own  clearly  implied  limits,  which  terminated  at  the 
railways  and  canals. 

But,  once  more,  if  a  railway  itself  employed  a  team  at  a  town 
remote  from  its  own  line  of  railway,  and  collected  goods,  parcels, 
etc.,  addressed  for  delivery  (that  is  what  an  address  means)  to 
places  along  their  line  of  railway,  and  without  anything  further 
to  show  a  contract,  "special"  or  general,  —  if  there  can  be  any 
such  distinction  as  that  in  connection  with  contracts,  —  there  a 
judge  could  fairly  direct  a  jury  that  this  was  primd  facie  evidence 
for  them,  and  a  jury  could  fairly  find  that  that  did  imply  that 
the  railway  contracted  to  transport  the  goods,  not  only  along  their 


104 


COMMENTARIES   ON   SALES. 


[book    III. 


line  of  railway,  but  from  the  remote  towns  where  they  had  col- 
lected the  goods  to  their  line  of  railway.  And  if  they  received 
payment  for  the  whole  route,  including  the  portion  of  the  route 
from  the  town  to  the  railway,  —  as,  if  the  question  came  up  in  that 
way,  they  would  be  clearly  entitled  to  do,  —  that  would  go  still 
farther  to  show  the  entirety  of  the  contract. 

In  the  same  way,  if  a  railway  received  for  carriage  goods  at 
one  of  its  stations,  addressed  for  delivery  to  another  station  along 
its  route,  then  it  would  clearly  be  implied  —  the  receipt  for  car- 
riage of  goods  so  addressed  for  delivery  clearly  implying  that  — 
that  they  contracted  to  deliver  the  goods  at  the  station  "  spe- 
cially "  or  specifically  designated  in  and  by  the  address ;  and  in 
a  suit  for  the  freight  from  the  point  at  which  the  goods  were 
received  to  that  where  they  were  delivered,  the  matter  of  the 
address  on  the  goods  would  be  a  material  item  in  the  evidence ; 
the  fact  that  the  goods  were  addressed  for  a  specific  place  im- 
plying clearly  that  it  was  the  intention  of  the  sender  to  have  them 
delivered  there. 

Precisely  so,  then,  where  goods  are  received  by  a  railway,  ad- 
dressed for  delivery  to  a  point  which  may  or  may  not  be,  for  aught 
the  shipper  may  or  may  not  know,  on  or  off  their  own  immediate 
line  or  extent  of  railway.  It  is  quite  competent  for  the  railway  to 
contract  to  carry  beyond  its  own  immediate  line  of  railway.^  If, 
then,  they  expressly  contract  to  do  so  by  way-bill,  freight  receipt, 
or  bill  of  lading,  they  are  clearly  bound  by  their  contract ;  why  may 
they  not  as  well  be  bound  by  facts  from  which  such  a  contract  may 
be  implied  ?  Clearly  they  may.  The  very  form  of  the  interrogatory 
proves  it.  A  contract,  or  "  special "  contract  if  you  will,  may  as 
well  be  raised  by  language  and  facts  which  imply  the  particular 
(or  "special")  contract,  as  by  language  alone  which  expresses  it. 

As  to  the  language  and  facts  from  which  such  a  contract  may 
be  implied,  that  is  a  matter  of  construction.  The  receipt  for  car- 
riage and  delivery  by  a  railway,  which  may  contract,  and  which 
does  very  often  expressly  contract,  to  carry  and  deliver  goods  to 
places  which,  as  far  as  the  shipper  is  concerned,  may  or  may  not 
be  on  their  own  line,  or  strictly  within  "  the  extent  of  their  own 
railway,"  of  goods  addressed  for  delivery  to  a  designated  place, 
is  surely  some  evidence  (and  if  so,  is  prima  facie  evidence,  so  far 
as  it  goes)  of  an  undertaking  by  them  to  deliver  the  goods  to  that 
expressly  designated  place  for  delivery.     Such  evidence,  accord- 

^  This  is  questioned  by  a  few  of  the  authority  both  here  and  in  England  is  that 

cases  in  this  country,  limited  principally  they  are  so  competent  ;    a  position,   the 

to  some  extremely  doubtful  cases  in  Con-  soundness  of  which,  we  think,  will-scarce.ly 

necticut  ;  but  the  overwhelming  weight  of  now  be  doubted. 


PART  II. J   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      105 

ing  to  the  accompanying  facts  and  circumstances,  may  or  may 
not  be  very  strong,  but  it  is  at  least  some  evidence  of  such  an 
undertaicing. 

Tliis  is  the  whole  effect  of  the  ruling  of  Rolfe,  B.,  in  Muschamp 
V.  Lancaster  Ry.  Co.^  The  learned  judge  there  directed  the  jury, 
that  where  a  common  carrier  takes  into  his  care  a  parcel  di- 
rected to  a  particular  place,  and  does  not  by  positive  agreement 
limit  his  responsibility  to  a  part  only  of  the  distance,  that  is 
prima  facie  evidence  of  an  undertalving  on  his  part  to  carry  the 
parcel  to  the  place  to  which  it  is  directed ;  and  that  the  same  rule 
applied  although  that  place  were  beyond  the  limits  withiu  which 
he  in  general  professed  to  carry  on  his  trade  of  a  carrier.  This 
ruling  was  unanimously  sustained  by  the  Court  of  Exchequer,  on 
the  ground  that  the  carriers  had  "  accepted  a  parcel  to  be  carried 
on  to  a  more  distant  place  "  than  their  own  route,  and  that  their 
acceptance  of  it  was  "  evidence  whence  the  jury  might  infer  that 
they  undertook  to  carry  it  in  safety  to  that  place." 

As  it  was  merely  prima  facie  evidence,  so  far  as  it  went,  of  a 
contract  to  carry  it  the  entire  distance,  obviously  such  primd  facie 
evidence  would  be  strengthened  or  weakened  by  such  other  evi- 
dence as  might  be  given  in  the  case.  The  additional  material 
items  of  the  evidence  in  this  case  were  that  there  was  to  be  but 
one  round  sum  paid  for  the  whole  railway  carriage  by  the  person 
to  whom  the  box  was  addressed,  who  "  would  be  ready  at  the 
other  end  to  receive  it,"  where  the  carriage  was  to  be  paid.  The 
box  was  lost  before  it  reached  the  terminus  of  the  connecting 
railway.  Had  the  charge  for  the  carriage  of  the  box  been  but  for 
the  portion  of  the  route  traversed  by  the  receiving  railway,  the 
mere  implication  derived  from  the  address  of  the  box  would  have 
been  necessarily  weakened  ;  but,  instead  of  that,  the  fact  that  the 
freight  was  to  be  for  the  carriage  for  the  whole  route  to  the  point 
at  which  the  box  was  to  be  delivered  to  the  party  who  was  to  be 
there  to  receive  it,  added  to  the  strength  of  the  evidence,  and,  we 
think,  fully  sustained  the  finding  of  the  jury ;  which  finding,  as 
well  as  the  direction  of  the  judge  on  the  trial,  was  unanimously 
affirmed  by  the  full  court.  After  this  very  full  consideration  of 
that  which  is  involved  by  what  has  been  decided  by  tlie  English 
cases,  we  now  examine  the  American  cases,  commencing  with 
those  which  are  usually  stated  as  holding  a  doctrine  opposed  to 
Muschamp  v.  Lancaster  Ry.  Co.,^  and  the  others  of  the  unbroken 
series  of  English  cases  which  are  in  accord  with  it. 

The  cases  in  Massachusetts  are  usually  among  those  cited  as 
establishing  a  different  principle  from  that  which  is  held  in  the 

1  8  M.  &  W.  421.  2  ]iid^ 


106 


COMMENTARIES   ON    SALES. 


[book   III. 


English  cases.  Nutting  v.  Connecticut  River  R.  R.  Co.^  is  one  of 
these.  It  also  is  one  of  the  cases  where  such  language  appears  as 
that  "  each  carrier  is  bound  only  to  the  end  of  his  route,  unless 
he  makes  a  special  contract  that  binds  him  further."  If  he  make 
a  "contract"  at  all  which  "binds  him  further,"  he  is  clearly 
"  bound ; "  and  this,  as  we  have  seen,  and  as  hosts  of  the  cases 
which  use  such  language  as  that  in  1  Gray,  502,  clearly  show,  he 
may  do,  either  expressly  or  impliedly.  So,  what  is  here  meant  by 
a  "  special  "  contract  is  rather  uncertain.  But  in  Xutting  v.  Con- 
necticut River  R.  R.  Co.  there  was  a  written  contract  in  which  the 
defendants  admitted  that  they  received  the  goods  "  for  transpor- 
tation to  New  York."  So,  the  question  for  the  court,  as  far  as  the 
contract  was  involved,  was  as  to  the  proper  construction  of  the 
written  contract,  —  of  course  in  the  light  of  the  surrounding  cir- 
cumstances. If  by  receiving  the  goods  for  transportation  (mean- 
ing carriage)  it  was  meant  that  they  "  boimd "  themselves  hy 
contract^  or  contracted,  to  carry  them  to  New  York,  then,  under 
their  express  contract,  they  were  "  bound  "  to  so  carry  or  trans- 
port them,  and  there  was  an  express  contract  to  carry  them  to 
New  York.  If  by  their  contract  they  had  agreed  to  deliver  them 
at  New  York,  they  would  clearly  have  been  bound  to  deliver  them 
there,  notwithstanding  carriage  or  transportation  over  another 
line  was  involved.  If  their  undertaking  for  their  "  transporta- 
tion "  to  New  York  amounted  to  this,  then  there  was  a  contract 
(or  "  special "  contract,  if  it  be  preferred)  for  the  delivery  of  the 
goods  there. 

But  the  head-note  of  the  case  is,  "A  railroad  corporation  re- 
ceiving goods  for  transportation  to  a  place  ^  situated  beyond  the 
line  of  their  road,  on  another  railroad  which  connects  with  theirs, 
but  with  the  proprietors  of  which  they  have  no  connection  in  busi- 
ness, and  taking  pay  for  the  transportation  over  their  own  road 
only,  are  not  liable,  in  the  absence  of  any  special  contract,  for  the 
loss  of  the  goods  after  their  delivery  to  the  proprietors  of  the 
other  railroad."  And  not  only  this,  but  in  addition  to  "taking 
pay  over  their  own  road  only,"  and  having  "  no  connection  in 
business "  with  the  proprietors  of  the  road  on  which  the  goods 
were  lost,  it  appears  from  the  facts  that,  at  tlie  termination  of 
their  road,  the  goods  were  formally  delivered  to  the  agents  of  the 
other  road,  by  whom  they  were  "  overhauled  and  checked,"  So, 
here  a  very  different  state  of  facts  is  presented  from  that  in  Mus- 
champ  V.  Lancaster  Railway.^     And  the  implication  arising  in  a 


1  1  Gray,  502.  or  implied  limitation  on  such  a  contract, 

2  If  their  contract  is  to  do  this,  how     that  they  are  not  "  bound"  to  perform  it. 
can  they  say,  unless  there  is  some  express  ^  3  M.  &  W.  421. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      107 

case  where  goods  marked  for  a  specified  place  were  received  for 
"  transportation "  or  carriage,  and  there,  too,  where  the  charge 
for  carriage  over  the  whole  route  is  in  one  sum,  may  be  very  dif- 
ferent from  what  it  might  be  in  such  a  case  as  Nutting  v.  Con- 
necticut River  R.  R.  Co.^  So  that,  in  this  case,  a  dissent  from 
what  is  stated  to  be  prlmd  facie  implied  by  undertaking  the  car- 
riage of  goods  marked  for  a  specified  place,  as  in  Muschamp  v. 
Lancaster  Railway,  was  unnecessary,  and  the  actual  holding  in 
the  one  case  is  by  no  means  opposed  to  that  in  the  other. 

The  cases  of  Thomas  v.  Boston  &  Providence  R.  R.  Co.^  and 
Norway  Plains  Co.  v.  Boston  &  Maine  Railroad ^  were  cited  in  Nut- 
ting V.  Connecticut  River  R.  R.  Co.,  but  they  are  not  decisions  on 
the  point  involved,  but  on  the  collateral  question  of  a  carrier's 
liability  becoming  that  of  a  warehouseman,  after  the  transitus 
with  him  has  ended. 

So  Judson  V.  Western  R.  R.  Co.*  simply  holds  that  a  railway 
company  was  not  liable  for  the  loss  of  goods  before  the  transitus 
had  commenced ;  having  been  holders  at  the  time  merely  as 
warehousemen  and  not  as  carriers. 

In  the  case  of  Lowell  Wire  Fence  Co.  v.  Sargent,^  the  question 
did  not  arise  with  reference  to  the  loss  of  goods,  but  rather  as  to 
the  nature  of  the  contract  of  an  expressman  who  receives  a  bill 
for  collection  at  a  distant  place ;  the  goods  for  which  the  bill  was 
to  be  collected  being  forwarded  at  the  same  time.  But  the  state- 
ment of  the  law  in  this  case,  as  far  as  it  is  applicable,  is  not  at 
all  inconsistent  with  the  holding  in  Muschamp  v.  Lancaster  Rail- 
way,^ that  where  a  railway  receives  goods  for  carriage,  marked  for 
delivery  to  a  designated  point,  this  is  evidence  for  a  jury  from 
which  they  may  infer  a  contract  on  the  part  of  the  railway,  so 
receiving  the  goods,  to  carry  and  deliver  them  to  the  designated 
point.  The  error  that  is  so  often  made  in  the  matter  is  in  treat- 
ing it  as  though  it  were  held  that  such  evidence  is  conclusive 
evidence,  instead  of  being,  as  one  significant  fact  in  the  matter, 
inQYeXy  prima  facie  evidence. 

The  whole  trend  of  the  English  cases  from  Upston  v.  CI  ark  ,^ 
down  to  the  very  latest  case  on  the  question,  is  not  inconsistent 
with  the  following  from  the  Massachusetts  court :  ^  "  There  was 
no  express  contract  in  relation  to  the  transportation  of  the  fence ; 
and  whether  the  implied  contract  was  to  carry  it  to  Annapolis, 
or  merely  to  carry  it  to  Boston,  and  forward  it  thence  by  the 

1  1  Orav,  502.  6  g  M.  &  W.  421. 

2  10  Met.  472.  7  2  C.  &  P.  598. 

3  1  (Ii-av,  2e>'i,  270.  8  In  Lowell  Wire  Fence  Co.  v.  Sargent, 
*  4  Allen,  520.  8  Allen,  189. 

5  8  Allen,  189. 


108 


COMMENTARIES   ON    SALES. 


[book   III. 


ordinary  lines  of  transportation,  was  certainly  a  question  for 
the  jury  upon  the  whole  evidence  in  the  case ;  in  determining 
which  they  would  consider  the  nature  of  the  business,  the  adver- 
tisements or  notices  given  by  the  defendants,  and  all  the  circum- 
stances tending  to  show  the  understanding  of  the  parties.  It  was 
therefore  properly  left  to  the  jury  ;  and  we  can  see  no  reason  to 
thinli  that  they  came  to  a  wrong  conclusion  upon  the  evidence 
reported."  And  even  if  the  fence  had  been  lost,  and  the  action 
had  arisen  out  of  that,  it  would  still  have  been  "  a  question  for 
the  jury,  under  the  directions  of  the  court,  upon  the  whole  evi- 
dence in  the  case  "  as  to  what  the  contract  between  the  parties 
was.  In  this  case  there  were  not  only  the  circumstances  alluded 
to  by  the  court,  for  consideration  ;  but  there  were  the  further  facts 
that  the  defendants'  iransitus  ended  in  Boston  ;  that  they  there 
delivered  the  fence  and  bill  over  to  other  forwarders,  taking  a  re- 
ceipt therefor ;  and  that  they  received  payment  for  the  freight 
only  to  Boston. 

Evidence  of  such  facts  as  these  was  given  in  the  Irish  cases,  cited 
by  us,  ante,  p.  86  et  seq.,  which  professedly  followed  the  English 
cases  ;  and  is  clearly  in  accordance  with  the  spirit  of  the  English 
cases  as  well,  and  would  be  matter  from  which  a  jury  could  well- 
infer,  that,  as  the  contract  of  the  express  company  was  not 
exclusively  governed  by  the  fact  that  the  fence  was  addressed  to 
Annapolis,  a  more  limited  contract  than  that  they  were  to  deliver 
it  there,  and  be  responsible  for  the  amount  to  be  collected  there 
for  its  payment,  might,  from  all  the  circumstances  of  the  case, 
be  implied.! 

In  Darling  v.  Boston  &  Worcester  R.  R.  Co.,^  it  is  said  that, 
"  In  the  absence  of  any  usage  or  special  contract,  a  carrier  is 
bound  to  carry  goods  only  upon  his  own  route,  and  then  deliver 
them  to  the  consignee  designated  hy  his  employer.  If  there  is  a 
usage  or  contract  by  which  he  is  to  deliver  them  to  another  car- 
rier to  be  transported  further,  he  discharges  his  duty  by  delivering 
them  in  good  order  and  with  proper  instructions  to  that  carrier. 
Such  a  usage  may  be  proved  in  order  to  show  what  his  duty  is." 

Garside  v.  Trent  &  Mersey  Nav.  Co.,^  and  Hyde  v.  The  Nav. 
Co.,*  are  cited  as  authorities  for  this.  If  here,  by  the  rather 
uncertain  term  '■'-special  contract"  is  meant  express  contract, 
and  that  it  may  not  be  implied,  from  the  circumstances  of 
the  case,  that  a  carrier  has  contracted  to  carry  goods  to  a  desig- 
nated point  for  which  the  goods  are  marked,  —  this  fact  being 

1  See  the  language  quoted  by  us  a.nte,  2  \\  Allen,  295. 

p.  78,  from  the  judgment  of  Lord  Abinger,  ^  4  f   j^   58^_ 

in  Muschamp  v.  Lancaster  By.  Co.,  8  M.  *  5  T.  R.  389. 
&  W.  421,  quite  consistent  with  this. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      109 

itself  some  evidence  of  such  an  implied  contract,  —  even  though 
that  point  may  be  beyond  or  outside  of  his  own  immediate  line ; 
then,  neither  the  English  cases  cited,  nor  any  other  English  or 
well-decided  American  case  either,  can  sustain  such  a  position  ; 
as  it  is  radically  unsound  and  is  entirely  unsupported  by  any 
English  case  that  can  be  named.  But,  in  the  case  above  put  by 
the  Massachusetts  court,  if  the  goods  have  been  delivered  by  the 
carrier  "  to  the  consignee  designated  by  his  employer,"  then  it 
would  seem,  on  the  very  face  of  the  proposition,  that  the  carrier, 
in  so  delivering  the  goods,  had  complied  with  the  express  terms 
of  the  contract. 

What  the  court  really  mean  by  their  use  of  the  term  "  special 
contract,"  is  made  still  more  uncertain  by  their  using  ^  the  term 
"  express  "  as,  apparently,  a  convertible  term  for  "  special,"  and 
then,  by  the  subsequent  use,  in  the  same  paragraph,  of  the  term 
"  express  or  implied  "  plainly  showing  that  they  mean  nothing  of 
the  kind.  What  they  do  mean  by  the  language  they  employ,  it 
is  absolutely  impossible  to  tell.  Thus  they  say  :  "  But  the  con- 
venience of  commerce  makes  it  highly  useful  to  send  goods  to 
distant  places  which  can  be  reached  only  by  several  connecting 
but  independent  lines  of  transportation.  It  is  important  that 
this  business  should  be  accommodated ;  and  this  may  be  done 
either  by  express  (!)  agreement  or  established  usage.  It  is  fre- 
quently done  in  this  country  by  express  arrangement  made  by  the 
proprietors  of  the  connecting  lines  with  each  other,  and  this  is 
much  better  than  to  leave  any  important  matter  of  this  kind  to 
be  settled  by  proof  of  mere  usage.  .  .  .  And  in  construing  the 
agreements,  express  or  implied  (!),  all  that  is  necessary  is  that 
they  should  be  reasonably  clear." 

If  by  all  this  is  meant  that  a  railroad  can  be  made  liable  only 
on  a  contract  to  carry  goods  beyond  its  own  line,  by  an  "  ex- 
press," or  as  they  so  often  call  it,  a  "  special "  contract,  it  is 
simply  nonsense.  If,  on  the  other  hand,  they  admit  that  such  a 
contract  may  be  either  express,  or  implied  from  the  facts,  as  in 
the  latter  part  of  the  paragraph  they,  in  express  terms,  virtually 
do,  then  they  admit  exactly  what  is  held  by  the  entire  series  of 
English  cases,  early  and  late,  on  the  subject. 

But  the  court  go  on  farther,  to  say :  "  Where  a  carrier  takes 
goods  that  are  to  be  carried  to  a  distant  point  beyond  his  line, 
and  must  pass  over  several  intermediate  lines,  his  employer  finds 
it  necessary  to  make  some  arrangement  for  the  payment  of  freight 
and  the  transportation  of  the  goods  over  each  line.  For  none  of 
the  intermediate  carriers  are  bound  to  transport  the  goods  till 

»  On  p.  296. 


110  COMMENTARIES   ON   SALES.  [BOOK    III. 

they  are  paid  for  it,  nor  are  they  bound  to  deliver  them  to  the 
next  carrier  Avithout  directions,  express  or  implied.  The  carrier 
may  become  liable  to  his  emiAoyer  for  transporting  them  over  every 
line  to  the  place  of  their  destination}  [Precisely  so,  hold  the 
English  cases.]  The  English  courts  have  held  that  the  first 
carrier  is  thus  liable  unless  he  makes  an  express  limitation  of  his 
liability."  No  authority  is  cited  for  this,  and,  as  we  have  very 
fully  shown,  it  is  an  utterly  inaccurate  statement  of  the  ratio 
decidendi  of  the  English  cases. 

But,  we  find  that  all  we  have  quoted  from  Darling  v.  Boston  k 
Worcester  R.  R.  Co.,^  and  very  much  more  to  the  same  purport, 
is  simply  obiter  dicta.  In  the  case  the  claim  was  not  against  the 
company  which  received  the  goods  (doing  so,  too,  under  an 
express  written  contract),  but  against  the  ultimate  connecting 
company,  for  an  injury  happening  to  the  goods  before  they  re- 
ceived them,  and,  under  the  state  of  facts  in  the  case,  it  was 
held, — '■  a  matter  entirely  too  clear  for  question,  —  that  they  were 
no  parties  to  the  original  contract,  and  were  not  liable  for  injury 
to  the  goods  not  caused  by  themselves.  The  only  ground,  ap- 
parently, on  which  it  was  sought  to  hold  them  liable  for  such 
damage  was  that  they  had  paid  the  freight  on  the  goods  to  the 
pomt  at  which  they  received  them,  but  there  was  nothing  in  that 
fact  from  which  it  could  be  implied  that  they  were  liable  for  such 
damage.  And  this  case  is  one  of  the  principal  cases  cited  ad 
nauseam  by  courts  and  text-writers  to  establish  that  the  doctrine 
of  the  English  decisions  on  the  subject  cannot  be  sustained  ! 

Another  of  those  cases  is  Gass  v.  New  York,  <tc.  R.  R.  Co.^ 
Here  again,  tlie  action  was  not  against  the  company  wliich  re- 
ceived the  goods  from  the  shipper,  but  against  a  connecting 
company,  and  it  was  held  that  the  connecting  company  was  not 
liable  for  the  loss  of  goods  destroyed  while  in  the  possession  of  the 
first  company  ;  the  facts  neither  showing  a  partnership  between 
them,  nor  an  agency  on  the  part  of  the  first  company  to  bind  the 
second  company  for  a  loss  of  goods  happening  before  they  reached 
the  possession  of  the  latter  company  ;  the  principle  on  which  the 
case  was  decided  being  that  very  simple  one  that  when  goods 
are  delivered  by  one  carrier  to  another,  it  is  evident  that  the 
liability  of  the  second  commences  only  when  that  of  the  first 
terminates. 

In  Burroughs  v.  Norwich  &  Worcester  R.  R.  Co.,*  the  term 
"  positive  "  is  substituted  for  their  usual  "  special;"  thus  :    "  The 

1  Najac  V.  Boston  &  Lowell  R.   R.,  7  »  99  Mass.  220. 
Allen,  329.                                                             4  100  Mass.  26. 

2  11  Allen,  29.'). 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      Ill 

law  is  well  settled  in  this  Commonwealth,  and  in  most  of  the 
United  States,  that  a  corporation  established  for  the  transporta- 
tion of  goods  for  hire  between  certain  points,  and  receiving  goods 
directed  to  a  more  distant  place,  is  not  responsible  beyond  the 
end  of  his  own  line,  unless  it  makes  a  positive  agreement  extend- 
ing its  liability." 

The  Massachusetts  cases  cited  for  this  are  those  which  we 
have  examined.  A  contract,  whether  it  be  called  "  special  "  or 
"positive,"  can  be  made  expressly,  or  it  may  be  implied  from 
circumstances.  This  is  the  general  rule  as  to  contracts,  and 
there  is  nothing  in  the  position  of  a  common  carrier  to  take  his 
contracts  from  out  this  rule.  Besides  his  liability  on  contract, 
express  or  implied,  a  common-law  liability,  independent  of  or  not 
strictly  based  on  contract,  sometimes  attaches  to  him.  But  the 
English  cases  on  this  subject,  not  dealing  with  this  common-law 
liability  as  a  carrier,  simply  hold  that  he  is  liable,  in  this  class  of 
cases,  on  his  contract,  express  or  .implied;  and  so  far  none  of 
these  Massachusetts  cases  really  controvert  this  position. 

It  is,  as  is  usually  the  case  with  the  construction  of  implied 
contracts,  a  matter  of  mixed  law  and  fact  as  to  the  circumstances 
from  which  such  a  contract  may  be  implied  ;  but,  so  far,  none  of 
those  Massachusetts  cases  touch  this  question  at  all.  Thus,  in 
this  case  last  cited  it  is  said :  "  The  English  cases  in  which  a 
station  agent  has  been  allowed  to  bind  the  corporation  by  a  con- 
tract to  carry  beyond  its  own  line  are  of  no  weight  in  this  case ; 
because  the  law  of  England  does  not  make  the  distinction  which 
our  law  does  between  goods  which  are  and  goods  which  are  not 
addressed  to  a  place  beyond  the  corporation's  own  line,  but  holds 
that  in  either  case  the  corporation  is  liable  as  a  common  carrier 
to  the  ultimate  destination." 

On  the  contrary,  the  English  cases  hold,  as  in  Upstoni;.  Clark;  ^ 
Gilberts.  Dale  ,^  Syms  v.  Chaplin  ;3  Garside  v.  The  Trent  Nav. 
Co. ;  *  Fowles  v.  The  Great  Western  Ry.  Co.,^  and  really,  in 
efifect,  under  the  original  contract,  as  regards  the  ultimate  carrier 
(the  ship  Melbourne  to  Australia),  Scothorne  v.  South  Stafford- 
shire Ry.  Co.,^  that  the  carrier  was  7iot  liable  "  as  a  common 
carrier  to  the  ultimate  destination^'  because  the  contract,  expressly 
or  impliedly,  did  not  make  him  so.  And,  on  the  other  hand,  in 
the  cases  where  he  was  so  held  liable,  it  was  because,  by  his  con- 
tract, express  or  implied,  he  had  so  made  himself  liable. 

But,  for  another  and  much  better  reason,  these  latter  English 

1  2  C.  &  P.  598.  ♦  4T.  R.  581. 

2  5  A.  &  E.  543.  5  7  Ex.  699. 

3  6  A.  &  E.  634.  6  8  E.\.  341. 


112  COMMENTARIES    ON    SALES.  [bOOK   III. 

cases,  "  in  which  a  station  agent  has  been  allowed  to  bind  the 
corporation  by  a  contract  beyond  its  own  lines,"  were  of  "  no 
weight  "  in  Burroughs  v.  Norwich  &  Worcester  R.  R.  Co.,^  because, 
although  under  the  receipt  given  in  this  case  there  was  the 
express  contract  to  "  forward  and  deliver^'  the  goods  to  the  ship- 
per at  their  ultimate  destination,  which  one  might  well  think  was 
a  "  special,"  or  "  positive,"  or  express  agreement  to  do  so ;  yet 
it  was  held  that  this  contract  had  been  entered  into  without 
authority,  and,  therefore,  in  effect,  that,  under  the  actual  contract 
in  the  case,  there  was  an  express  agreement  that,  "  in  case  loss 
or  damage  should  be  incurred,  that  company  alone  should  be 
responsible  therefor  in  whose  acfual  custody  the  goods  might  be 
at  the  time  of  such  loss  or  damage ; "  and,  therefore,  that  the 
company,  under  such  an  express  contract,  was  not  liable  for  a 
loss  to  the  goods  after  they  had  passed  entirely  out  of  their 
possession,  "  custody,"  and  control. 

The  court  there,  very  much  in  the  spirit  of  the  English  cases  on 
a  much  clearer  point,  came  to  the  conclusion  "  that  these  facts 
were  clearly  insufficient  to  warrant  a  court  or  jury  in  inferring 
that  he  had  authority  to  bind  the  defendants  as  common  carriers 
beyond  the  line  of  their  own  railroad."  We  know  of  no  principle 
which  would  "  warrant  a  court  and  jury  inferring,"  under  such 
facts  as  tliese,  that  the  defendants  were  not  bound  "  as  common 
carriers  beyond  the  line  of  their  own  railroad,"  and  yet  that  would 
exclude  a  court  and  jury  from  inferring  the  contrary  under  a 
different  and  very  much  clearer  state  of  facts  than  that  upon 
which  rests  the  very  doubtful  decision,  —  as  the  case  appears 
in  the  report  of  Burroughs  v.  Norwich  &  Worcester  R.  R.  Co.''^ 
Certainly,  it  limits  the  power  of  a  railway  agent  to  bind  the  com- 
pany by  a  freight  receipt  not  only  much  farther  than  Armour  v. 
Michigan  Central  R,  R.  Co.,^  and  that  class  of  cases  do,  whicli 
hold,  in  the  sense  they  do,  that  "  the  apparent  authority  is  the 
real  authority ; "  but  even  beyond  the  holding  in  very  many  of  the 
cases  which  refute  the  errors  (exposed  in  the  previous  Part  of 
this  Book)  in  Armour  v.  Michigan  Central  R.  R.  Co.,*  and  the 
cases  following  it.  And,  we  notice  further,  that,  on  the  point,  the 
court  in  Burroughs  v.  Norwich  &  Worcester  R.  R.  Co.,^  do  not 
cite  a  solitary  case  tp  sustain  their  position,  although  it  is  the  real 
point  involved  in  the  case ;  and  all  their  reasoning  consists  in  the 
expression  of  an  opinion  of  the  clear  insufficiency  of  the  facts  to 
warrant  the  inference. 

1  100  Mass.  26.  «  Tbid. 

2  Tbid.  6  100  Mass.  26. 
8  65  N.  Y.  111. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      113 

The  case  of  Pendergast  v.  Adams  Express  Co.  ^  is  still  less  a 
refutation  of  the  doctrine  established  by  the  En,*>:lish  cases.  In 
this  case  the  parcel  was  given  "  Upon  the  special  acceptance  and 
agreement  that  this  company  is  to  forward  the  same  to  its  agent 
nearest  or  most  convenient  to  destination  only,  and  then  to  de- 
liver the  same  to  other  parties  to  complete  the  transportation, — 
such  delivery  to  terminate  all  liability  of  this  company  for  such 
package."  The  package  in  question  having  been  so  forwarded 
and  delivered  by  the  defendants,  it  was  very  properly  held  that 
they  were  not  liable  for  the  loss  of  a  portion  of  the  contents  of 
the  package,  which  took  place  after  such  delivery.  This  case 
simply  answers  the  question  put  by  Coleridge,  J.,  in  the- spirit  in 
which  it  was  asked,  in  Gilbert  v.  Dale^:  "Suppose  goods  were 
left  with  a  carrier  to  be  taken  by  him  to  York,  and  from  thence 
forwarded  to  Edinburgh,  would  it  be  sufficient,  in  an  action 
against  him  for  negligence,  to  show  that  the  goods  did  not  reach 
Edinburgh  ? "  From  what  appears  in  many  of  the  cases  in  this 
country,  as  to  the  nature  of  the  English  decisions  on  the  point, 
it  would  seem  singular  to  say,  but  it  is  nevertheless  true,  that,  in 
answer  to  such  question,  there  is  not  an  English  case  which 
replies  to  it  contra  to  the  holding  in  Pendergast  v.  Adams 
Express  Co.^ 

True,  in  this  case  the  court  do  say:  "When  a  common  carrier 
is  a  corporation  established  for  the  purpose  of  transporting  goods 
over  a  certain  route,  goods  delivered  to  such  corporation,  directed 
to  a  more  distant  place,  are  presumed  by  our  law  to  be  received 
for  the  purpose  of  being  carried  over  its  own  route  only,  and  then 
forwarded  by  another  carrier  to  their  destination."  But  this  was 
not  necessary  for  the  purposes  of  the  case,  as  in  it,  as  we  have 
shown,  the  liability  of  the  carrier  was  expressly  limited  by  the 
contract.  And  the  only  authority  cited  by  the  court  for  their 
proposition  is  Burroughs  v.  Norwich  &  Worcester  R.  R.  Co.,* 
which,  as  we  have  seen,  supra,  sustains  no  such  position.  They 
further  add  :  "  When  there  is  no  charter  to  indicate  the  limits 
of  the  carrier's  business,  and  no  written  agreement  between  him 
and  the  other  party,  the  question  what  was  in  fact  the  extent  of 
his  undertaking  is  a  question  for  the  jury."  To  which  wo  submit, 
that,  by  the  English  cases,  as  well  as  by  all  the  well-decided  cases 
on  that  point  in  this  country,  such,  under  the  'projper  directions  of 
the  court  to  the  jury  in  the  particular  case,  is,  too,  generally  the 
law,  both  in  pjuirland  and  here,  where  there  is  an  implied  agree- 
ment between  the  carrier  and  the  other  party  for  the  carriage  of 

MOl  Mass.  120.  »  101  Mass.  120. 

2  5  A.  &  E.  543.  «  100  Mass.  26. 


114 


COMMENTARIES    ON   SALES. 


[book    III. 


goods,  though  they  are  to  be  carried  beyond  "  the  limits  of  the 
carrier's  business  "  as  indicated  by  his  charter. 

It  is  now  scarcely  anywhere  contended  that  a  carrier's  limits 
for  the  carriage  of  goods,  under  an  express  or  implied  contract, 
are  strictly  and  necessarily  confined  to  his  charter  limits.^  With 
this  correction,  and  the  correction  as  to  the  actual  holding  of  the 
Massachusetts  court  in  Burroughs  v.  Norwich  &  Worcester  R.  R. 
Co.,2  and  the  law  as  laid  down  and  decided  in  Pendergast  v. 
Adams  Express  Co.,^  comes  very  closely  to  the  law  as  it  is  estab- 
lished in  England,  and  Ireland,  and  in  many  of  the  United  States, 
agreeing  with  these. 

Aigen  v.  Boston  &  Maine  R.  R.,^  although  another  case  usually 
cited  for  its  assumed  opposition  to  the  holding  of  the  English 
cases,  is,  we  find,  on  examining  it,  really  no  nearer  being  so, 
than  are  the  other  Massachusetts  cases  which  are  generally  cited 
for  that  purpose,  and  which  we  have  examined.  In  this  case  the 
Maine  Central  R.  R.  Co.  contracted  for  the  transportation  of 
horses  over  the  whole  line  from  Waterville,  Maine,  to  Boston, 
Massachusetts,  which  included  their  own  line  as  well  as  that  of 
the  defendants.  The  action  against  the  defendants  was  in  tort, 
with  a  count  in  contract,  for  injury  to  the  horses.  As  far  as  the 
contract  was  concerned,  the  court  held,  in  the  strictest  accord 
with  the  English  cases,  that  the  contract  having  been  made 
between  the  plaintiff  and  the  Maine  Central  R.  R.  Co.,  for  trans- 
portation of  the  horses  over  the  whole  route,  and  not  with  the 
defendants,  there  was  710  privity  of  contract  between  the  plain- 
tiff and  defendants,  and  that  in  whatever  way  the  contract  was 
looked  at,  the  defendants  thereby  assumed  no  duty  or  obligation 
to  the  plaintiff  which  could  be  enforced  by  an  action  at  all ;  that 
is,  obviously  meaning  under  the  contract.  This  is  the  very 
essence  of  the  doctrine  of  the  English  cases.^  The  court  then 
say :  "  Whether  the  contract  was  introduced  in  evidence  or  not, 
the  defendant  corporation  would  be  liable  for  any  loss  or  injury 
occurring  through  its  own  negligence.  [This  is  quite  in  accord 
with  the  English  cases.]  The  English  doctrine,  that,  where  there 
is  one  contract  for  carriage  over  several  connecting  roads,  the 
first  carrier  is  exclusively  liable  for  losses  over  the  whole  route, 
has  never  prevailed  here  ;  and  the  doctrine  here  is  well  estab- 
lished, that  each  carrier  is  responsible  for  the  results  of  its  own 
negligence,  even  althougli  the  first  carrier  may  also  by  express 


1  See  the  very  next  case  we  state,  Aigen 
V.  Boston  &  Maine  K.  R.,  132  Mass.  423, 
and  decided  by  the  Massachusetts  Court 
itself,  where  such  a  power  to  contract  is 
unquestioned. 


2  100  Mass.  26. 

3  101  Mass.  120. 
*  132  Mass.  423. 

5  See  snpra,  p.   87  et  sex}.,  where  we 
state  them  fully  on  this  very  point. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      115 

contract  have  assumed  a  responsibility  for  losses  occurring  on  the 
lines  of  succeeding  carriers." 

This  is  absolutely  inexcusable,  and  shows  the  most  lamentable 
ignorance  and  perversion  of  what  they  call  "the  English  doc- 
trine "  in  the  matter.  The  English  decisions  are,  actually,  the 
very  reverse  of  what  they  are  here  stated  to  be,  and  the  doctrine 
which  is  stated  to  be  established  in  Massachusetts  is  precisely,  as 
we  have  very  fully  shown  ^  it  to  be,  as  decided,  over  and  over 
again,  in  England. 

Thus,  in  the  late  case  of  Foulkes  v.  The  Metropolitan  District 
Ry.  Co ;  ^  affirmed  in  the  Court  of  Appeal,^  it  was  held  that  even 
assuming  that  the  contract  was  with  one  company,  so  that  an 
action  for  damages  under  the  contract  would  lie  against  them,  yet 
that  an  action  would  as  well  lie  against  another  company  with 
whom  there  was  no  contract,  whose  acts  caused  the  injury  to  the 
plaintiff ;  the  defendants,  who  had  made  no  express  contract,  being 
liable  independent  thereof  for  their  misfeasance.  In  that  case  it 
is  laid  down  by  Lopes,  J.,*  as  thoroughly  decided  hy  the  authorities^ 
that  where  there  is  a  contract  with  railway  A.  for  carriage  over 
railways  A.  and  B.,  and  damages  have  accrued  from  the  negli- 
gence of  railway  B.,  raihvay  A.  is  liable  to  be  sued  on  the  contract, 
and  railway  B.for  the  negligence^ 

The  incorrect  statement  of  the  English  law  in  the  matter,  as 
stated  by  the  Massachusetts  Court  in  Aigen  v.  Boston  &  Maine 
R.  R.,^  is,  in  effect,  the  same  as  that  other  perversion  of  the 
English  law  on  the  same  point,  made  by  Redfield  in  his  works  on 
Carriers  and  Railways,  and  referred  to  by  us,  sufra,  p.  96  et  seq.^ 
and  which  is  repeated  over  and  over  again  in  hosts  of  American 
cases.  The  statement  of  what  the  English  law  on  the  question  is, 
was  probably  taken  by  tlie  Massachusetts  court  from  Redfield, 
without  any  examination  of  the  English  authorities  in  the  matter. 
It  is  in  this  way  that  errors  in  law,  being  often  repeated,  are  per- 
petuated. It  will  thus  be  seen  that  not  one  of  the  Massachusetts 
cases  —  which  are  always  prominently  cited  to  show  that  there  is 
an  "  American  rule  "  in  the  matter  differing  from,  and  entirely 
opposed  to,  what  is  called  "  the  English  rule  "  —  at  all  affects  what 
we  think  is  the  clear  and  undoubted  soundness  of  the  English 
cases  on  the  important  questions  we  are  so  fully  considering. 

The  New  York  cases  are  generally  cited  as  being  in  antagonism 

^  See  supra,  where  we  have  cited  the     English  cases  cited  by  ns,  supra,  and,  par- 
English  cases  literally  in  scores.  ticularly  the  principles  of  law,  as  deduced 
■''  4  C.  P.  Div.  267.  from  the  English  cases,  at  supra,  p.  89, 
8  5C.  P.  Div.  157.  etseq. 
*  4  C.  P.  Div.  at  p.  282.  6  132  Mass.  at  p.  425. 


See,  to  the  same  effect,  the  numerous 


116  COMMENTARIES   ON   SALES.  [BOOK   III. 

with  each  other ;  part  of  them  being  stated  to  hold  in  accordance 
with  what  has  been  laid  down  as  "  the  English  rule  "  in  the  mat- 
ter and  part  of  them  the  reverse.  We  now  proceed  to  examine 
them  in  detail,  and  to  ascertain  from  such  examination  whether 
the  doctrine  they  hold  is  or  is  not  in  accordance  with  that  which 
we  have  shown  by  our  examination  of  the  English  cases,  to  be  the 
well-decided  law  in  the  matter  in  England. 

The  first  of  these  cases,  Ackley  v.  Kellogg  ^  (a.  d.  1828),  was 
decided  lono-  prior  to  Muschamp  v.  The  Lancaster  Railway  Co.^ 
(A.  D.  1841).  In  Ackley  v.  Kellogg,  the  defendants'  express  con- 
tract was  to  carry  the  goods  to  Troy,  and  there  to  forward  them 
by  a  canal-boat,  and  for  this  latter  service  they  received  no  com- 
pensation. The  jury  found  that  in  so  forwarding  them,  they  fol- 
lowed the  instructions  of  the  plaintiff,  and  the  court  lield  that  the 
defendants  had  thereby  incurred  no  responsibility  for  a  loss  which 
took  place  after  they  had  delivered  them  to  the  canal-boat.  The 
court  very  properly  distinguished  the  case  from  Hyde  v.  The  Trent 
&  Mersey  Navigation  Co.^  (a.  d.  1793),  where  the  carriers  were 
held  liable  for  a  loss  while  in  the  possession  of  their  carters,  in 
the  course  of  their  contract  transitus. 

The  next  case  is  Weed  v.  The  Saratoga  R.  R.  Co.*  (a.  d.,  1838 ; 
still  prior  to  Muschamp  v.  Lancaster  Railway),^  where  it  was  held, 
quite  in  accordance  with  the  English  cases,  and,  as  we  have  seen, 
by  those  in  Massachusetts  as  well,  that  a  railroad  company 
contracting  to  carry  passengers  and  their  baggage  beyond  the 
limits  of  their  own  road,  are  liable  for  losses  which  occur  on 
any  part  of  the  route,  in  respect  of  which  the  contract  is  made. 
The  case  also  holds,  quite  in  accordance  with  the  English  cases, 
that  where  a  third  party,  not  a  party  to  the  contract,  claims  against 
the  carrier  for  loss  or  damage,  he  cannot  recover  in  an  action 
on  a  contract  to  which  he  is  no  party,  but  must  recover  in  tort. 
It  is  repeatedly  said  that  this  case  has  been  overruled  by  Van 
Santvoord  v.  St.  John,°  but  we  see  no  reason  in  the  case  itself  to 
cause  any  question  to  be  made  of  its  correctness. 

The  case  in  6  Hill,  157,  came  up  first  as  St.  John  v.  Van  Sant- 
voord,*^ and  was  decided  a.  d.  1841,  and  concurrently  in  this  coun- 
try, with  the  decision  of  Muschamp  v.  The  Lancaster  Railway  Co.^ 
in  England.  The  similarity  in  the  holding  of  the  two  courts, 
neither  being  cognizant  of  the  holding  of  the  other,  is  remarkable  , 
although,  as  we  shall  see,  there  are  essential  differences  between 
the  two  cases. 

'  8  Cow.  223.  *  6  Hill,  157. 

2  8  M.  &  W.  421.  6  25  Wend.  660. 

3  5  T.  R.  389.  ?  8  M.  &  W.  421. 
*  19  Wend.  534. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      117 

In  St.  John  v.  Van  Santvoord,^  the  plaintiffs  put  a  box  of  cloth- 
ing on  board  one  of  the  defendants'  boats  at  New  York,  directed 
to  "  P.,  Little  Falls,"  taking  a  receipt  therefor,  as  "  one  box  of 
merchandise,  marked  P.,  Little  Palls."  On  arrival  of  the  boat  at 
Albany,  the  box  was  transferred  to  a  boat  forming  part  of  a  line 
of  canal-boats  plying  between  Albany  and  Little  Falls,  and  the 
freight  of  the  box  from  New  York  to  Albany  was  paid  to  the  de- 
fendants by  the  master  of  the  canal-boat.  On  arrival  of  the  box 
at  Little  Falls,  it  was  found  to  have  been  broken  open,  and  that 
some  of  the  contents  were  gone.  The  defendants  proved  that 
their  business  was  limited  to  the  transportation  of  goods  between 
New  York  and  Albany,  and  that  it  was  the  universal  custom  or 
usage  of  all  the  tow-boat  lines  on  the  Hudson  River  engaged  in 
that  business,  when  they  brought  from  New  York  boxes  or  pack- 
ages directed  to  a  place  west  or  north  of  Albany,  to  deliver  them 
over  to  the  masters  ^f  canal-boats  employed  in  the  transportation 
of  goods  west  and  north  of  Albany,  and  to  receive  from  them  the 
river  freight,  which  was  charged  to  the  consignee,  and  received 
on  delivery  of  the  goods  to  him  ;  and  having  done  so,  the  owners 
of  the  tow-boat  lines  considered  their  duty  ended.  Knowledge  of 
such  custom  or  usage,  or  that  the  defendants'  line  terminated  at 
Albany,  was  not  brought  home  to  the  plaintiffs,  and  proof  of  the 
custom  was  objected  to  by  them ,  but  the  objection  was  overruled. 
The  presiding  judge  charged  the  jury  that  there  was  no  evidence 
of  any  contract  on  the  part  of  tlie  defendants  to  carry  the  goods 
to  Little  Falls,  and  that  none  could  be  implied  from  the  receipt 
which  had  been  given ;  that  the  known  usage  of  the  trade  entered 
into  and  formed  part  of  the  contract  between  the  parties ;  and  if 
they  should  find  that  the  goods  were  delivered  at  Albany,  accord- 
ing to  such  usage,  and  that  the  defendants  had  used  ordinary  dili- 
gence in  procuring  a  safe  conveyance,  and  in  forwarding  the  goods 
beyond  Albany  to  Little  Falls,  they  had  discharged  their  duty  as 
common  carriers,  and  were  entitled  to  a  verdict  in  their  favor. 
The  plaintiffs  excepted  to  this  charge.  The  jury  having  found  for 
the  defendants,  the  plaintiffs  sued  out  a  writ  of  error.  The  Su- 
preme Court  held  unanimously  that  the  court  below  erred  in 
charging  that  the  usage  of  the  trade  at  Albany  determined  the 
rights  of  the  parties,  and  also  in  charging  that  there  was  no  express 
or  implied  contract  to  carry  the  goods  beyond  that  place.^     The 

1  25  Wend.  660.  plainly  to  whom   the   plaintiffs  were  de- 

2  Nelson,  C.  J.,  in  delivering  the  judg-  sirous  of  sending  it,  and  was  delivered 
ment  of  the  court,  said  :  "  it  appears  to  on  board  for  the  express  purpose  of  trans- 
nie  such  a  contract  is  fairly  to  be  inferred  shipment  to  him  ;  and  without  any  quali- 
irom  the  receipt  of  the  captain,  in  the  fication  or  explanation  the  ai^ent  received 
absence  of  any  explanation.  The  box  was  the  article,  and  gave  his  receipt  therefor  ; 
directed  to   P.,    Little    Falls,    indicating  in  effect,  saying  to  the  plaintiffs,  '  I  will 


118 


COMMENTARIES   ON  SALES. 


[book   III. 


case  went  to  the  Court  of  Errors,^  where  the  judgment  of  the  Su- 
preme Court  was  reversed,  five  of  the  members  of  the  court 
dissenting. 

This  case,  instead  of  overruling  Weed  v.  The  Saratoga  R.  R. 
Co.,2  expressly  distinguishes  that  case,^  on  the  ground  that  there 
the  two  lines  were  connected  together  between  themselves ;  and 
the  agent  of  the  defendant  took  the  pay  in  advance  for  the  con- 
veyance of  the  plaintiff  and  his  baggage  the  whole  distance.  Or 
if  no  actual  connection  between  the  two  lines  was  proved,  it  at 
least  appeared  that  the  defendant  permitted  its  agent  to  hold  it 
out  as  a  carrier  of  passengers  and  their  baggage  for  the  whole 
distance,  by  taking  pay  therefor.  But  nothing  of  the  kind  appears 
in  the  present  case.  This  equally  distinguishes  Muschamp  v. 
The  Lancaster  R.  R.,*  although,  at  that  time  ("a.  d.,1813),  the  New 
York  Court  of  Errors  were  not  aware  of  the  decision  in  that  case. 
But  there,  precisely  the  same  connection  existed  between  the  rail- 
ways as  in  Weed  v.  The  Saratoga  R.  R.  Co.,^  and,  as  in  that  case, 
there  was  but  one  through  rate  for  the  carriage  of  the  goods ;  a 
point  expressly  relied  on  by  Lord  Abinger,  C.  B.,  in  his  judgment 
at  pp.  427,  428. 

In  Van  Santvoord  v.  St.  John  ^  there  was  not  only  the  question 
of  the  established  usage,  but  there  was  the  further  important  fact 
that  the  defendants  on  delivering  the  goods  at  Albany  were  paid 
their  freight  in  full  to  that  point,  and  had  no  further  connection 
whatever  with  the  other  carriers ;  differing  here  not  only  from 
Muschamp  v.  The  Lancaster  Ry.  Co.,"  but  from  all  the  other  Eng- 
lish cases  where  the  doctrine  in  that  case  has  been  acted  on,  in- 
cluding even,  according  to  their  construction  of  the  conditions  in 
the  railway  receipt,  the  case  in  the  House  of  Lords  of  Bristol,  &c. 


take  and  deliver  it  at  the  place  of  destina- 
tion, according  to  the  direction.'  So  the 
plaintiffs  must  undoubtedly  have  under- 
stood the  contract.  It  is  the  plain  in- 
terpretation of  the  transaction.  If  the 
defendants  had  intended  to  limit  their 
duty  as  common  carriers  short  of  the  place 
of  destination,  they  should  in  some  way 
have  indicated  to  the  plaintiffs  this  intent. 
Perhaps  usage  of  the  line  brought  home 
to  them  might  have  been  sufficient,  and 
might  have  controlled  the  otherwise  rea- 
sonably implied  engagement  from  the 
receipt ;  but  the  contract  derivable  there- 
from is  too  explicit  and  manifest  to  be 
varied  by  the  mere  fact  of  such  general 
custom.  Regularly,  the  receipt  itself 
should  have  limited  the  carriage  to 
Albany,  to  be  forwarded  to  the  place 
of   destination,    if    to    be    sent    further. 


Then  the  defendants  would  have  been 
liable,  as  carriers  to  Albany,  and  as  for- 
warders only  beyond  that  point.  This  is 
a  very  common  arrangement  with  carriers. 
Garside  v.  The  Trent  &  Mersey  Nav.  Co., 
5  T.  R.  389  ;  Ackley  v.  Kellogg,  8  Cow. 
223.  The  contract  would  thus  have  been 
materially  modified,  as  the  forwarder  is 
only  liable  for  ordinary  care  in  procuring 
a  proper  conveyance  for  the  goods ;  and 
all  parties  would  have  understood  their 
rights  and  liabilities." 

1  Van  Santvoord  v.  St.  John,  6  Hill, 


157. 

2 

19  W 

end. 

5.34. 

3 

At  p. 

Ifil, 

prr  Walworth, 

Chancellor. 

4 

8M. 

&  W 

.  421. 

5 

19  W 

end. 

534. 

6 

6  Hill.  If,: 

1 . 

7 

8M. 

&  W 

.  421. 

PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS. 


119 


Ry.  V.  Collins.^  The  case  of  Van  Santvoord  v.  St.  John^  comes 
rather  within  that  class  of  English  cases  represented  by  Upston 
V.  Clark  3  and  Gilbert  v.  Dale,'^  than  within  Muschamp  v.  The  Lan- 
caster Ry.  Co.,^  and  the  cases  which  follow  it.^ 

The  main  question  in  the  case  was  as  to  the  evidence  of  usage, 
with  reference  to  which  the  dissenting  judges  in  the  case  claimed 
that  that  question  had  not  been   sufficiently  left  to  the   jury.^ 


1  7  H.  L.  Cas.  194. 

2  6  Hill,  157. 

3  2  C.  &  P.  598. 
*  5  A.  &  E.  543. 
5  8  M.  &  W.  421. 

s  The  distinction  is  well  taken  by 
Bockee,  Senator,  thus:  "The  implied 
contract  which  the  law  makes  for  the 
parties  must  be  reasonable,  and  such  as 
is  consistent  with  the  defendants'  occu- 
pation and  the  usage  of  trade.  If  the 
receipt  had  been  given  by  a  person  whose 
business  was  to  receive  goods  for  storage, 
the  implied  contract  would  be  to  keej) 
them  with  ordinary  diligence  ;  and  the 
name  of  a  place  marked  on  a  box  could 
uot  subject  him  to  the  liabilities  of  a  com- 
mon carrier."  (At  p.  162.)  And  again 
(at  p.  164)  :  "  If  a  contract  is  to  be  im- 
plied merely  from  a  mark  upon  the  box 
and  without  reference  to  the  nature  of  the 
employment  or  business  of  the  party,  then 
every  carman  ^^'ho  receives  a  marked  bale 
of  merchandise  is  in  great  danger.  If  the 
fatal  name  of  '  Peckagama '  or  '  Chegor- 
inegon  '  appear  on  the  bale,  the  carman  in 
the  city  as  well  as  the  freighter  on  the 
Hudson  will  be  held  liable  as  common 
carrier  till  the  goods  shall  reach  their 
remote  destination.  Such  cannot  be  the 
law.  The  pi-actical  inconvenience  and 
injustice  of  such  a  rule  would  be  too  great 
to  be  endured."  The  same  distinction  is 
observable  in  the  judgment  of  Rhoades, 
Senator,  who  says  (at  p.  170)  :  "  There 
are  men  in  this  State  who  are  engaged  as 
common  carriers  in  the  transportation  of 
the  produce  of  the  country  by  land.  One 
of  these  men  receives  a  load  of  flour  on 
board  his  wagon  for  the  purpose  of  de- 
livering it  at  some  point  on  the  Erie  Canal 
[the  question  is  simply  as  to  the  entirety 
of  the  contract,  express  or  implied],  the 
barrels  being  marked  and  directed  to  a 
town  in  the  interior  of  the  State  of  Maine. 
The  carrier  neglects  to  make  a  special 
contract  (a)  that  his  liability  is  to  cease  at 
the  point  of  delivery  on  the  canal ;  but 

(re)  Special  is  here  evidently  used  in 
the  sense  of  express,  which  has  probably 
given  rise  to  its  being  subsequently  so 
often  erroneously  used  in  the  statement 
that  "a  carrier  can  onlv  lie  made  linble 


he  delivers  the  flour  in  good  order  on  the 
canal,  and  the  property  is  forwarded  from 
one  line  of  transportation  to  another, 
until  it  passes  into  the  hands  of  the  last 
carrier  on  the  route,  by  whose  want  of 
care  it  is  lost.  It  would,  under  such  cir- 
cumstances, be  a  most  severe  and  harsh 
rule  of  law  which  should  make  the  person 
who  first  undertook  the  transportation  of 
the  article  liable  for  its  loss." 

'  The  views  of  the  majority  of  the 
court  on  tlie  subject  are  well  expressed  by 
Putnam,  Senator  (pp.  165-167),  thus,  — 
"The  case  mainly  rests  upon  the  legal 
presumptions  arising  from  the  delivery  of 
the  box  to  the  plaintiffs  in  error,  taken  in 
connection  with  the  facts  proved  in  rela- 
tion to  the  nature  of  their  business  and 
the  usage  applicable  to  it.  .  .  .  Irre- 
spective of  any  special  agreement,  or  of 
any  express  proof  of  knowledge  by  the 
shipper  of  the  custom  of  the  carrier,  or 
the  limit  of  his  line,  my  impression  is, 
that  when  goods  going  west  of  Albany 
are  committed  to  a  carrier  whose  route 
terminates  at  that  place,  he  discharges  his 
duty  under  his  implied  obligation  when 
he  makes  a  delivery  according  to  the 
uniform  course  of  business  pursued  iii 
similar  cases.  Such  should  be  the  law. 
The  usage  or  custom  enters  into  and  forms 
a  part  of  the  contract  created  by  the  de- 
posit of  the  goods  with  the  carrier.  In 
the  case  of  Hyde  v.  The  Trent  k  Mersey 
Nav.  Co.,  5  T.  R.  389,  the  question  was 
whether  delivery  of  the  goods  at  a  ware- 
house in  Manchester  was  a  delivery  to  the 
plaintiff' ;  and  Mr.  Justice  Grose  said  : 
'  Whether  it  be  or  be  not  a  delivery,  may 
depend  on  the  general  custom  of  the 
trade,  or  the  particular  usage  which  has 
prevailed  between  the  parties  themselves.' 
In  Garside  v.  The  Tient  &  Mersey  Nav. 
Co.,  4T.  R.  581,  evidence  of  the  usage  and 
course  of  business  was  received  to  deter- 
mine whether  the  defendants,  at  the  time 
the  goods  were  burned,  held  tliem  as 
common  carriers  or  mere  wharfingers  for 

by  special  contract."  In  marwy  of  the 
cases,  and  by  the  text-writers,  it  is  used 
in  some  misty  .sense  other  than  express, 
as  "by.  a  special  contract,  express  or 
implied.' 


120 


COMMENTARIES   ON    SALES. 


[book    III. 


Eliminating  from  the  case  the  question  whether  the  usage  had  or 
had  not  been  sufficiently  proved  and  submitted  to  the  jury,  there 
is  nothing  in  it  in  the  different  facts  of  the  case  to  interfere  with 
the  holding  in  Muschamp  v.  The  Lancaster  Ry.,^  or  to  overrule 
Weed  V.  The  Saratoga,  &c.  R.  R.  Co. ,2  a  case  which,  as  we  have 
seen,  is  virtually  identical  with  Muschamp  v.  Lancaster  Ry. 

The  minority  judges  in  Van  Santvoord  v.  St.  John,^  while  claim- 
ing, just  as,  in  effect,  is  held  in  the  two  above  last-named  cases, 
that  the  receipt  and  the  marks  upon  the  box  formed  an  important 
item  of  evidence  in  showing  what  the  parties  understood  to  be 
the  agreement  at  the  time  the  box  was  delivered,  admitted  that 
satisfactory  evidence  of  usage  would  overcome  the  inference  to  be 
derived  from  such  facts.^     It  will  be  noticed  that  it  was  admitted 


the  plaintiffs.  Mr.  Justice  Cowen,  in  the 
case  of  Gibson  v.  Culver,  17  Wend.  305, 
said  :  '  Nor  do  1  understand  the  force  of 
usage  in  such  a  case  to  be  denied,  but  on 
the  contrary  it  is  expressly  admitted  in 
Ostrander  V.  Brown,  15  Johns.  39.'  Evi- 
dence of  usage  and  practice  was  received 
In  the  case  of  Sewall  v.  Allen,  6  Wend. 
335,  to  prove  that  the  defendants  were 
common  carriers  of  bank  bills.  It  was 
resorted  to  also  in  Barnes  v.  Faley,  5  Burr. 
2714,  and  Mr.  Justice  Aston  there  ob- 
served, that  '  the  limits  of  the  delivery 
are  to  be  determined  by  the  usage  of  the 
place.'  And  in  Rushford  v.  Hadfiehl,  7 
East,  224,  the  court  agreed  in  the  pro- 
priety of  such  evidence  to  enlarge  the 
rights  of  carriers.  I  have  not  been  able 
to  discover,  therefore,  that  any  error  was 
committed  by  the  Cotumon  Pleas  in  re- 
ceiving the  evidence  of  usage  given  in 
this  case.  From  the  evidence  given  at 
the  trial,  the  jury  had  a  right  to  assume 
that  the  bo.K  iu  question  was  delivered  to 
be  transported  according  to  the  business 
of  the  line  ;  and,  if  necessary,  that  the 
usage  was  well  known  to  the  plaintilfs. 
In  other  words,  it  w^as  the  province  of  the 
jury  to  determine  the  effect  and  extent  of 
the  implied  contract  between  the  parties." 

1  8  M.  &  W.  421. 

2  19  Wend.  534. 

8  6  Hill,  p.  n\,et  seq. 

*  Thus,  in  expressing  their  views  on 
the  point.  Porter,  Senator,  said,  —  "If 
the  defendants  in  error,  when  they  took 
the  receipt,  knew  that,  by  general  and 
common  usage,  the  responsibility  of  the 
jilaintiffs  in  error,  for  articles  sent  by 
them,  extended  only  to  the  safe  delivery 
of  the  articles  on  board  a  responsible 
canal-boat  at  Albany,  this  would  un- 
doubtedly have  qualified  the  receipt  ;  and 
if  the  testimony  established  that  point  in 
the  opinion  of  the  jury,  they  should  have 
found  for  the  plaintiffs  in  error.     I  admit 


also  that  proof  of  something  short  of 
actual  knowledge  on  the  part  of  the  de- 
fendants in  error,  would  have  warranted 
such  a  verdict.  The  principle  laid  down 
in  Gibson  v.  Culver,  17  Wend.  305,  fur- 
nishes, I  think,  the  true  rule  which 
should  govern  this  and  similar  cases. 
That  was  the  case  of  a  stage-coachman, 
who  had  a  parcel  delivered  to  him  to  carry 
to  Troy,  directed  to  a  mercantile  house  in 
that  city.  It  was  left  at  the  coach  office, 
and  no  notice  was  given  to  the  persons  to 
whom  it  was  directed.  The  parcel  being 
lost,  the  consignor  sued  the  stage  pi-o- 
prietors,  and  claimed  that  the}'  were  liable 
because  tliey  had  not  given  notice  to  the 
cousignees.  The  court  decided  that  it 
was  competent  for  the  defendants  to  prove, 
that  the  uniform  usage  and  course  of 
business  was  to  leave  goods  at  the  usual 
stopping  places  of  the  coach,  without  giv- 
ing notice  to  the  consignees  ;  and  that  if 
such  usage  had  been  so  long  and  so  well 
understood  as  to  warrant  the  jury  in  say- 
ing that  the  consignor  knew  it,  the  carrier 
would  be  discharged.  This  rule  is  founded 
in  good  sense.  If  the  consignor  under- 
stood the  usage  and  course  of  business, 
he  would  have  said  to  himself :  '  All  the 
carrier  has  to  do  is  to  leave  the  parcel  at 
the  coach  office,  and  he  has  then  per- 
formed his  contract  ;  I  must  therefore 
give  notice  to  the  consignees.'  But  if  the 
consignor  did  not  understand  the  usage, 
the  law  would  warrant  him  in  presuming 
that  the  parcel  would  be  delivered  by  the 
carrier  to  the  consignee.  This  must  be 
so,  or  the  usage  would  operate  as  a  fraud 
upon  the  consignor ;  for  the  common-law 
obligation,  which,  in  the  absence  of  any 
different  one  expressly  entered  into,  or 
implied  from  known  usage,  requires  the 
carrier  to  make  delivery  to  the  consiijnee, 
would  thus  be  modified  and  varied  without 
the  knowledge  of  the  other  party.  Tliis 
certainly   can   never   be   tolerated.      The 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OP  GOODS.      121 

all  around  that  sufficient  proof  of  usage  would  overcome  the  im- 
plication resulting-  from  the  goods  being  received  marked  for  a 
destination  beyond  the  carrier's  immediate  route.^ 

In  Jacobs  v.  Hooker,^  the  contract  was  express  that  the  defend- 
ant was  to  carry  the  goods  from  New  York  to  Troy,  and  then 
forward  them  to  Worcester,  Ohio.  It  was  held,  where  it  was 
found,  at  a  point  between  Troy  and  Worcester,  that  a  part  of  the 
goods  had  been  abstracted,  the  burden  was  on  the  defendant  to 
show  that  he  had  carried  the  goods  to  Troy  and  then  duly  for- 
warded them.  There  is  no  question  as  to  the  correctness  of  this 
case. 

Wilcox  V.  Parmelee  ^  follows  and  approves  of  Muschamp  v. 
Lancaster  Ry.,*  and  holds  that,  one  fixed  rate  being  charged  for 
the  whole  distance,  the  defendant,  who  contracted  "  to  forward  " 
(here  construed  "to  carry")  goods  to  a  locality  beyond  his  own 
immediate  route,  was  liable  for  a  loss  that  took  place  in  connecting 
vessels,  he  having  improperly  forwarded  the  goods  in  sailing 
vessels  instead  of  steam  vessels.  The  materiality  of  the  case  is 
in  the  stress  that  is  laid  in  it  on  the  through  payment.^ 


jurj'  must  in  these  and  the  like  cases  find, 
that  the  usage  has  sflch  continuance,  pub- 
licity, and  general  acceptation,  as  would 
charge  the  consignor  with  notice  of  it. 
In  the  case  before  us,  the  defendants  in 
error  had  a  right  to  infer  from  the  conduct 
of  the  captain  and  from  the  receipt,  that 
the  box  would  be  carried  to  Little  Falls  ; 
and  the  proof  given  of  a  usage  at  Albany, 
among  carriers,  was  insufficient  to  author- 
ize the  court  in  determining  tliat  such  was 
not  the  contract.  If  the  plaintiffs  in  error 
wished  to  vary  or  modify  their  common- 
law  liability,  they  should  prove  a  usage 
so  publicly  and  generally  known  at  New 
York,  where  the  plaintiffs  resided,  as  to 
warrant  the  jury  in  saying  that  it  was 
probably  known  to  the  defendants  in  error, 
and  that  tliej'  contracted  in  this  case  in 
reference  to  it.  Proof  of  such  a  usage 
would  have  limited  the  import  of  the 
receipt.  The  defendants  in  error  had  a 
right  to  require  this  proof,  and  then  that 
it  should  be  submitted  to  the  jury." 

1  Although  this  case  was  not  decided 
in  the  Court  of  Errors  until  a.  d.  1843,  or 
two  years  after  the  decision  of  Muschamp 
V.  Lancaster  \\\.,  8  M.  &  W.  4'21,  yet  the 
New  York  court  seemed  to  have  known 
nothing  of  this  decision.  But  on  ]ire- 
eisely  the  same  ground  on  which  they 
distinguished  Weed  v.  The  Saratoga,  &c. 
R.  R.'  Co.,  19  Wend.  534,  is  Muschamp 
V.  Lancaster  Ry.,  8  M.  &  W.  421, 
distinguishable. 

2  1  Edm.  472. 


3  3  Sandf.  610. 

*  8  M.  &  W.  421. 

^  After  quoting  from  Lord  Abinger, 
in  Muschamp  v.  Lancaster  Ry.,  8  M.  & 
W.  421,  as  to  the  inference  to  be  drawn 
from  the  carriage  money  being  one  un- 
divided sura,  and  approving  of  the  con- 
clusion there  arrived  at,  the  court  say  : 
"Here  the  defendant  undertook,  for  a 
specified  price,  to  forward  the  goods  in 
question  from  New  York  to  iTairport. 
The  criticism  of  the  defendant  on  the 
word  'forward,' as  used  in  the  contract, 
is  not  just.  It  applies  to  the  whole  dis- 
tance, as  well  to  that  portion  of  the 
route  where  he  employed  his  own  means  of 
transportation,  as  to  those  portions  where 
other  parties  were  owners  of  the  vessels. 
He  was  to  forward  the  goods  from  New 
York  to  Fairport,  not  from  Buffalo,  where 
he  now  says  was  the  termination  of  his 
own  immediate  route.  The  word,  as  used 
by  him,  can  only  mean,  that  he  was  to 
carry  or  transport  the  goods,  and  whether 
in  his  own  vessels,  or  in  those  of  otliers, 
was  perhaps  immaterial  to  the  plaintiff, 
provided  on  those  parts  of  the  journey 
where  steam  was  to  be  used,  they  were 
carried  in  steam  vessels.  Besides,  there 
is  a  fixed  sum  which  covers  the  whole 
charge,  and  it  would  be  absurd  to  suppose 
that  the  defendant  was  to  receive  the 
whole  sum  for  merely  forwarding,  that  is 
placing  the  goods  on  the  vessels  of  some 
other  party,  to  be  carried  to  their  place 
of  destination."     The  court  further  say  : 


122 


COMMENTARIES   ON   SALES. 


[book   III. 


The  case  of  Hart  v.  The  Rensselaer,  &c.  R.  R.  Co.i  is  quite 
consistent  with  the  English  cases.  The  agent  of  a  road,  which 
was  one  of  three  connecting  roads,  sold  a  ticket  for  the  entire 
route.  It  was  held  that  this  was  an  entire  contract  for  the  whole 
route,  and  that  the  road  whose  agent  sold  the  ticket  was  liable 
for  the  loss  of  luggage  which  took  place  on  any  portion  of  the 
route.  The  sale  of  the  ticket  over  the  whole  route  raises  an 
implication  very  similar  to  that  of  receiving  goods  marked  for  an 
ultimate  destination  and  receiving  pay  for  their  carriage  over  the 
whole  route.^ 

It  is  simply  a  question  of  contract,  express  or  implied.  In 
Hunt  V.  The  New  York  &  Erie  R.  R.  Co.,^  it  was  held  that  if 
either  of  the  carriers  is  liable  for  the  whole  route,  it  could  only 
be  the  one  who  made  the  original  contract  for  transportation. 
Those  who  subsequently  receive  and  forward  the  goods  can  only 
be  liable  for  damage  done  by  themselves,  and  not  for  damage 
before  the  goods  came  to  their  custody,  even  where  they  have 
received  the  freight  for  the  whole  distance ;  receiving  the  freight 


"  The  case  in  our  books  most  analogous' to 
the  present  is  perhaps  that  of  Fairchild  v. 
Slocuni,  19  Wend.  329.  There  the  de- 
fendants held  themselves  out  as  carriers, 
and  the  court  say  it  is  of  no  moment 
whether  they  use  their  own  vessels,  or 
employ  the  vessels  of  others  to  carry  for 
them  on  some  part,  or  even  all  of  the  route  ; 
that  it  is  enough  that  they  received  the 
goods  on  an  undertaking  to  deliver  them 
at  their  place  of  destination.  And  see 
Weed  V.  S.  &  S.  R.  R.  Co.,  19  Wend. 
535."  And  they  thus  distinguish  St. 
John  V.  Van  Santvoord,  6  Hill,  157  : 
"There  was  no  special  undertaking  in 
that  case  ;  no  price  ;  no  contract.  The 
goods  were  put  on  board  the  defendant's 
barge  in  New  York,  directed  to  a  place  on 
the  Erie  Canal,  and  were  lost  on  the 
canal.  The  defendants  in  that  case  were 
carriers  on  the  Hudson  River  only,  and 
proved  that  they  forwarded  the  goods 
from  Albany  in  the  usual  and  customaiy 
manner."  This  is  very  far  from  treating 
that  case  as  though  it  held  any  doctrine 
contra  to  Muschamp  v.  Lancaster  Ry.,  8 
M.  &  W.  421,  or  as  though  it  had  over- 
ruled Weed  V.  Saratoga,  &c.  R.  R.  Co.,  19 
Wend.  535. 

1  4Seld.  (8  N.  Y.)  37. 

2  An  agreement  "  to  forward,"  in  Kreu- 
der  V.  Woolcott,  1  Hilt.  223,  was  con- 
strued to  mean  an  agreement  io  carry  the 
entire  distance,  where  freight  was  to  be 
paid  for  that  distance.  The  court  follow 
Wilcox  V.  Parmelee,  3  Sandf.  610  ;  Weed 
V.  The  Saratoga,  &(\  R.  R.  Co.,  19  Wend. 
534,  and  Hart  v.  The  Rensselaer,  &c.  R.  R. 


Co.,  4  Seld.  37,  without  any  intimation 
that  either  of  these  cases  had  been  over- 
ruled, and  say:  "The  agreement  in  the 
bill  of  lading  to  forv^ird  the  goods  from 
New  York  to  St.  Louis,  and  the  specifica- 
tion in  the  bill  of  the  amount  of  freight 
for  the  whole  distance,  show  that  the  de- 
fendants undertook,  as  common  carriers, 
to  deliver  the  goods  in  St.  Louis.  The 
defendants  were  not  forwarders,  but  carri- 
ers. Green  r.  Clarke,  2  Kern.  (12  N.  Y. ) 
343.  A  simple  engagement  to  forward 
goods  at  New  York,  marked  for  a  particu- 
lar destination,  is  discharged  by  shipping 
the  goods  by  the  usual  or  most  direct  con- 
veyance to  the  place  designated  ;  but  an 
agreement  to  forward  them  from  New  York 
to  the  place  of  destination,  the  charge  for 
freight  for  the  whole  distance  being  speci- 
fied in  the  agreement,  is  very  different. 
It  is  an  agreement  to  carry  them  for  that 
distance,  or  to  be  responsible  ft)r  their  safe 
carriage  and  delivery  at  the  place  desig- 
nated in  the  agreement."  Mallor}' y.  Bur- 
rett,  1  E.  D.  Smith,  234,  is  to  the  same 
effect.  The  head-note  there  is  :  "  The 
carrier  with  whom  a  contract  for  transpor- 
tation is  made,  is  responsible  for  the  safe 
carriage  of  the  goods  to  tlie  place  of  destin- 
ation, as  fixed  in  the  contract,  both  on  his 
own  route  and  on  the  subsequent  routes  to 
which  the  goods  ma)'  be  transferred  ;  and 
he  is  not  entitled  to  any  additional  com- 
pensation, although,  in  consequence  of  the 
charges  upon  the  subsequent  routes,  the 
whole  transportation  may  cost  more  than 
the  contract  juice." 
3  1  Hilt.  228. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OP  GOODS. 


123 


for  the  previous  lines  only  as  their  agents,  and  making  a  charge 
for  their  own  freight  separate  and  distinct  from  the  other  charges. 
This  sustains  the  distinction  in  the  English  cases  as  to  an  action 
against  the  contracting  carriers  on  their  contract,  and  against  the 
others  in  tort  for  damages  independent  of  contract. 

The  case  of  Dillon  v.  The  New  York  and  Erie  R.  R.^  is  perfectly- 
consistent  with  the  English  cases.  There,  the  goods  were  marked 
for  their  ultimate  destination,  St.  Paul,  Minnesota ;  the  receipt 
given  by  the  defendants  so  stating,  and  that  they  were  to  the  care 
of  C,  Galena,  Illinois ;  itself  short  of  the  designated  ultimate 
terminus.  The  defendants'  road  only  extended  to  Dunkirk,  which 
was  known  to  the  shipper,  who  was  told  by  the  general  freight 
agent  of  the  road  that  it  was  not  necessary  for  him  to  have  an 
agent  at  the  terminus  of  the  road  to  receive  the  goods  there,  but 
that  they  would  he  forwarded  on  to  him.  The  Marine  Court  held 
that  the  receiving  company  were  liable  for  the  loss  of  the  goods 
which  occurred  after  they  had  been  duly  forwarded  by  the  defend- 
ants from  Dunkirk.  This  decision  was  very  properly  reversed  by 
the  court  of  Common  Pleas.^ 


1  1  Hilt.  231. 

2  Dah',  J.,  in  delivering  the  judgment 
of  the  court,  said  :  "  There  was  nothing 
in  the  evidence  to  warrant  the  court  below 
in  finding  that  the  defendants  undertook 
to  carry  the  brandy  to  the  place  of  destin- 
ation. They  merely  engaged  to  carry  it  to 
Dunkirk,  the  terminus  of  their  road,  and 
to  ship  it,  or  forward  it  from  there  by 
the  usual  line  of  conveyance  to  Galena,  the 
place  of  destination,  and  this  they  did. 
Their  liability,  as  common  carriers,  ceased 
at  Dunkirk,  and  they  then  assumed  the 
character  of  forwarders.  In  Weed  v.  Sar- 
atoga, &c.  R.  R.  Co.,  19  Wend.  534,  the 
two  lines  were  connected  together  by  an 
arrangement  between  themselves,  and  the 
defendants  took  the  pay  in  advance  of  the 
conve3'anc§  of  the  plaintiff  and  his  baggage 
for  the  uhole  distance.  Such  was  also  the 
case  in  Hart  v.  The  Rensselaer,  &c.  R.  R. 
Co.,  4  Seld.  37  ;  and  in  Wilcox  v.  Parme- 
lee,  3  Sandf.  610.  The  defendant  agreed  in 
writing  to  forward  the  goods  of  the  plain- 
tiff from  New  York  to  Fairport,  to  the 
close  of  the  season,  at  a  certain  rate/jcr  100 
lbs.,  and  the  court,  though  the  word  for- 
ivard  was  used,  held  that  this  was  an  agree- 
ment, in  substance,  to  carry  the  whole 
distance  for  a  specified  price.  In  these 
cases  the  carrier  received,  or  it  was  agreed 
that  he  should  receive,  the  amount  paid 
for  transport  to  the  place  of  destination  ; 
and  thus  having  received,  or  contracted  to 
receive,  the  full  reward,  he  was  bound  to 
perform  the  entire  service.     [This  equally 


distinguishes  Muschamp  v.  The  Lancaster 
Ry.,  8  M.  &  W.  421.]  But  nothing  of  the 
kind  appeared  in  this  case.  The  inquiry 
made  by  the  shipper  showed  that  he  knew 
that  the  defendants'  road  terminated  at 
Dunkirk.  He  merely  asked  if  it  would  be 
necessary  to  have  an  agent  at  that  place  or 
at  Chicago,  to  receive  the  goods,  and  was 
told  that  it  would  not  ;  that  the  goods 
would  be  shipped  right  on  through  ;  that 
they  would  be  '  forwarded  on  to  liini  ; ' 
that  the  direction  on  the  goods  was  all  that 
was  necessary ;  and  what  the  defendants 
engaged  to  do  upon  the  arrival  of  the  goods 
at  Dunkirk,  they  did,  by  delivering  them 
to  a  transportation  line  engaged  in  trans- 
porting merchandise  from  Dunkirk  to  the 
place  where  the  goods  were  directed.  The 
reply  to  Knox  by  the  freight  agent,  that 
it  would  be  unnecessary  to  have  an  agent 
to  receive  the  goods  at  Chicago,  that  they 
would  be  shipped  right  on  through,  was, 
as  respects  anything  beyond  the  terminus 
of  his  own  road,  but  the  expression  of  an 
opinion  or  belief  that  the  goods  would  be 
duly  forwarded,  upon  arriving  at  Chicago, 
to  the  ])lace  to  which  they  were  destined, 
and  cannot  be  construed  as  an  engagement 
or  undertaking  on  his  part,  on  behalf  of 
the  defendants,  to  carry  them,  or  to  be 
responsible  for  their  carriage  to  the  ulti- 
mate place  of  destination."  There  is 
another  point  in  this  case  not  noticed  by 
the  court.  While  Chicago  is  on  the  ex- 
treme east  of  Illinois,  Galena  is  on  its  ex- 
treme west.    As  the  goods  were  shipped  by 


124  COMMENTARIES   ON   SALES.  [BOOK   III. 

In  Wing  V.  The  New  York  &  Erie  R.  R.  Co.,^  where  the 
receiving  company  had  taken  pay  for  the  transportation  of  goods 
over  an  entire  route,  they  were  held  liable  on  their  contract ;  yet 
tiie  connecting  company,  though  not  parties  to  the  contract,  were 
also,  as  the  English  cases  we  have  stated  hold,  liable  for  a  loss 
caused  by  their  own  negligence. 

Wright  V.  Boughton,2  although,  like  Van  Santvoord  v.  St.  John,^ 
often  cited  to  show  the  establishment  of  a  different  doctrine  than 
that  of  the  English  cases,  is  no  more  than  is  that  case,  intelli- 
gently considered,  an  authority  for  anything  of  the  kind.  In 
Wright  V.  Boughton,*  the  defendants  were  partners  in  transport- 
ing goods  and  passengers  between  Lewiston  and  Niagara  Falls  by 
wagons.  Whatever  contract  there  was  in  this  case  was  in  writ- 
ing. The  receipts  acknowledged  the  receipt  of  the  goods  on 
board  the  defendants'  line  "  to  be  delivered  in  like  good  condi- 
tion," but  naming  no  place  for  delivery.  At  the  bottom  of  the 
receipts  were  copied  the  addresses  on  the  goods,  places  in  Michigan, 
and  beneath  these  were  "  M.  C.  R.  R.,"  meaning  the  Michigan 
Central  Railroad.  In  one  of  the  shipping  notes  of  the  goods  was 
"  Freight  to  Falls,  $0.38.  M.  C.  R.  R. ;  "  and  in  the  other  "  M.  C. 
R.  R.  Freight  to  Niagara  Falls,  -10.38. "  And  in  both  of  the  ship- 
ping notes  it  was  stated  how  the  goods  were  "  marked,"  which 
corresponded  with  the  marks  on  the  goods  and  in  the  receipts. 
There  was  no  connection  or  interest  in  business  between  the  de- 
fendants and  any  other  company  or  line  ;  their  business  being  to 
carry  goods  by  wagons  between  Lewiston  and  Niagara  Falls,  —  a 
distance  of  some  seven  miles ;  and  such  was  the  general  under- 
standing. The  goods  were  duly  delivered  to  the  Michigan  Cen- 
tral R.  R.,  and  were  lost  and  sunk  in  their  steamer  on  Lake 
Michigan.  In  an  action  against  the  defendants  for  the  value  of 
the  goods,  on  an  alleged  contract  that  they  had  undertaken  to 
deliver  them  to  the  places  in  Michigan  to  which  tliey  were  ad- 
dressed, the  court  was  requested  to  instruct  the  jury  that  if  they 
found  that  the  defendants  carried  the  goods  from  Lewiston  to 
Niagara  Falls,  so  that  the}'  might  be  forwarded  from  there,  as 
directed  in  the  shipping  bills,  then  they  must  find  for  the  defend- 
ants. The  court  refused  to  do  this,  and  directed  the  jury  to  find 
a  verdict  for  the  plaintiffs.  It  is  an  utter  distortion  of  Muschamp 
V.  Lancaster  Ry.^  to  fancy  that  that  case  is  a  warrant  for  such  a 

the  shipper  to  the  care  of  C,  Galena,  ob-  ultimate   point   to  which   the  defendants 

vionsl y  proof  that  the  goods  never  reached  were  forwarders. 

St.   Paul,  Minnesota,  would  not  be  suffi-  i  1  Hilt.  235. 

cient  to  cause  the  defendants  to  be  liable  ^  22  Barb.  561. 

for  the  loss  of  the  goods,  even  assuming  ^  g  Hill,  157. 

that  the  defendants  were  carriers  to  Ga-  *  22  Barb.  561. 

lena  ;  the  point  treated  by  the  court  as  the  ^  8  ^1.  &  W.  421. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      125 

course  as  was  pursued  on  the  trial  of  Wright  v.  Bouf^hton.^  In 
the  former  case  the  direction  of  Rolfe,  B.,  was,  that  the  taking  a 
parcel  by  a  carrier,  directed  for  carriage  to  a  particular  place,  was 
primd  facie  evidence  (that  is,  simply,  some  evidence)  of  an  under- 
taking by  the  carrier  to  take  it  to  the  designated  place ;  or,  as 
Lord  Abinger  put  it  (at  p.  42G),  "  this  being  evidence  whence  the 
jury  might  infer  that  they  undertook  to  carry  it  in  safety  to  that 
place."  And  further  (at  p.  427),  "Now,  it  certainly  might  be 
true  that  the  contract  between  these  parties  was  such  as  that  sug- 
gested by  the  counsel  for  the  defendants,  but  other  views  of  the 
case  may  be  suggested  quite  as  probable  ;  such,  for  instance,  as 
that  these  railroad  companies,  though  separate  in  themselves,  are 
in  the  habit,  for  their  own  advantage,  of  making  contracts,  of 
which  this  was  one,  to  convey  goods  along  the  whole  line,  to  the 
ultimate  terminus,  each  of  them  being  agents  of  the  other  to 
carry  them  forward,  and  each  receiving  their  share  of  the  profits 
from  the  last.  The  fact  that,  according  to  the  agreement  proved 
the  carriage  was  to  be  paid  at  the  end  of  the  journey,  rather  con- 
firms the  notion,  that  the  persons  who  were  to  carry  the  goods 
from  Preston  to  their  final  destination,  were  under  the  control  of 
the  defendants,  who  consequently  exercised  some  influence  and 
agency  beyond  the  immediate  terminus  of  their  own  railway.  Is 
it  not  then  a  question  for  the  jury  to  say  what  the  nature  of  the 
contract  tvas ;  and  is  it  not  as  reasonable  an  inference  for  them 
to  draiv,  that  the  whole  was  one  contract,  as  the  contrary  ? " 

In  Wright  v.  Boughton,^  on  the  contrary,  considering  the  small 
specific  sum  to  be  paid  the  defendants  for  the  conveyance  in  their 
independent  line  of  wagons,  to  the  terminus  of  their  own  route, 
entirely  unconnected  with  any  other  line,  and  with  the  name  of 
the  railway  to  which  they  were  to  be  forwarded,  and  by  which 
they  were  to  be  conveyed  to  Michigan,  expressly  mentioned  in  the 
shipping  notes,  and  the  address  being  copied  into  the  receipts 
and  shipping  notes,  merely  as  matter  of  description  ;  there  was 
nothing  whatever,  whether  for  the  court  or  jury,  to  warrant  the 
inference  that  the  facts  in  this  case  constituted  a  contract  be- 
tween the  plaintiff  and  defendants  for  the  conveyance  of  the 
goods  by  the  defendants  any  further  than  to  the  place  to  which 
they  were  to  be  paid  freight  as  mentioned  in  their  shipping  notes. 
And,  on  the  facts  in  the  case,  had  they  brought  an  action  for 
freight  for  the  transportation  of  the  goods  to  Michigan,  on  any 
contract  expressed  or  to  be  implied  from  the  named  facts  in  the 
case,  such  action  could  not  for  one  moment  have  been  sustained. 
The  court  above  well  held  that  there  was   no  such   agreement 

1  22  Barb.  561.  2  md. 


126  COMMENTARIES   ON   SALES.  [BOOK    III, 

expressed,  as  that  the  defendants  should  themselves  convey  the 
goods  to  Michigan ;  and  that  there  was  nothing  in  the  case  from 
which  such  an  agreement  could  be  mf erred  (except  the  fact  that 
the  receipts  and  shipping  notes  contained  the  address  or  direc- 
tiojis,  copied  from  the  cards  put  upon  the  goods)  that  the  instru- 
ments should  be  so  construed ;  that  the  address  was  incorporated 
in  the  instrument  for  the  purpose  of  identification,  and  that  the 
parties  had  no  idea  that  the  defendants  were  entering  into  a  con- 
tract to  transport  the  goods  beyond  the  route  occupied  by  them  as 
common  carriers. 

The  case  comes  within  such  cases  as  Upston  v.  Clark  ;^  Gilbert 
V.  Dale,^  and  Symes  v.  Chaplin,^  stated  by  us,  (supra,  p.  76  et  seq.). 
There  is  no  more  ground  for  holding,  from  the  facts  in  Wright  v. 
Boughton,*  that  the  defendants  expressly  or  impliedly  contracted 
to  carry  the  goods  to  Michigan  and  deliver  them  there,  than  there 
is  in  Scothorn  v.  The  South  Staffordshire  Ry.  Co,.^  stated  supra, 
p.  79,  for  holding,  under  the  original  contract  in  that  case  (which 
case,  by  the  way,  expressly  follows  Muschamp  v.  The  Lancaster 
Ry.  Co.,^  and  Watson  v.  The  Ambergate  Ry.  Co.),'^  that  because 
the  plaintiff's  box  was  marked  for  its  ultimate  destination,  "  Aus- 
tralia," the  defendants,  merely  from  that  fact,  would  have  been 
liable  for  its  delivery  there,  notwithstanding  the  facts,  as  a  whole, 
showed  that  they  only  contracted  to  deliver  the  box  at  London, 
to  the  ship  Melbourne,  there ;  to  which  point  alone  were  they 
paid,  and  not  for  the  conveyance  to  the  point  of  its  proposed  ulti- 
mate destination,  Australia,  per  the  ship  Melbourne. 

Many  of  the  American  cases  give  a  wider  signification  to  the 
language  of  Rolfe,  B.,  in  Muschamp  v.  The  Lancaster  Ry.  Co.,^ 
than  it  fairly  bears,  which  has  led  to  much  of  the  misapprehen- 
sion which  we  find  in  some  of  the  cases  in  this  country  as  to  the 
law  in  the  matter  as  established  in  England,  as  we  have  shown  it 
to  be  in  our  examination  of  the  cases,  at  p.  74  et  seq. 

In  the  later  case  of  Foy  v.  The  Troy  &  Boston  R.  R.  Co.,^  the 
head-note  is :  "  Where  a  railroad  company  receives,  for  transporta- 
tion, property  addressed  to  a  person  at  a  point  beyond  the  terminus 
of  its  road,  it  will  be  understood,  in  the  absence  of  any  proof  to 
the  contrary,  to  have  agreed  to  deliver  the  property,  in  the  same 
order  and  condition  in  which  it  was  received,  to  the  consignee."  ^" 

^  2  C.  &  P,  598.  "'  Harris,  J.,  in  delivering  the  unani- 

2  5  A.  &  E.  543.  mous  judgment  of  the  Supreme  Court  of 

3  5  A.  &  E.  634.  New  York,  says  :   "The  only  point  upon 

*  22  I'arb.  561.  which  the  counsel  for  the  defendnnts  relied 
^  8  Ex.  341.  upon  the  argument,  was  that  the  defend- 

*  8  M.  &  W.  421.  ants  were  only  carriers  from  Troy  to  Eagle 
'  la.Iur.  448.  Bridge,  the  terminus  of  their  road.  Rut 
8  8  M.  &  W.  421.  a  sufficient  answer  to  this  position  is,  that 
3  24  Barb.  382.  the  wagon  was  to  be  carried  to  Burlington. 


1 


PART  H.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      127 

Burtis  V.  The  Buffalo,  &c.  R.  R.  Co.^  was  a  case  where  there 
was  an  express  contract  to  carry  and  deliver  goods  on  the  line  of 
a  connecting  road,  and  it  was  held  that  such  a  contract  could  be 
made  as  well  at  common  law  as  under  the  New  York  statute,  and 
that  under  the  statute^  the  contracting  company's  liability  ex- 
tended over  the  whole  route  with  reference  to  which  it  had  con- 
tracted, even  though  this  extended  outside  of  the  State  of  New  York. 

In  Root  V.  The  Great  Western  R.  R.  Co.,^  the  A.  company  re- 
ceived goods  from  the  plaintiff  at  New  York,  upon  the  express 
contract  that  that  company  should  transport  the  goods  to  their 
warehouse  at  Suspension  Bridge,  and  should  not  be  liable  for  any 
loss  of  or  injury  to  such  goods  after  they  had  been  sent  from  their 
warehouse.  The  goods,  which  were  marked  for  Burr  Oak,  Mich- 
igan, a  place  on  the  route  of  the  B.  company,  were  delivered  to 
the  defendants  at  Suspension  Bridge,  without  any  express  con- 
tract or  limitation  of  liability,  and  in  the  ordinary  course  of  their 
duty  as  common  carriers.  The  defendants  carried  the  goods 
safely  to  Detroit,  the  customary  place  for  the  delivery  of  freight 
for  places  on  the  B.  railway,  and  there  delivered  them  to  the 
latter  company,  where,  on  the  same  night,  they  were  destroyed 
by  an  accidental  fire  in  the  warehouse  of  the  B.  company.  The 
custom  between  the  defendants  and  the  B.  company  was  that  the 
B.  company  collected  the  freight  on  goods  going  west  of  Detroit, 
and  paid  to  the  defendants  their  freight-money  for  the  transporta- 
tion to  Detroit,  and  there  was  no  community  of  interest  or  part- 
nership between  the  defendants  and  the  B.  company.  To  hold 
the  defendants  liable  on  an  implied  contract  to  carry  the  goods 
to  Burr  Oak,  Michigan,  under  such  circumstances  as  these,  would 
be  to  hold  not  only  the  first  or  receiving  company  so  liable,  from 
the  mere  receipt  of  goods  marked  to  an  ultimate  destination, 
where  there  was  no  express  contract  nor  any  other  circumstances 
in  the  matter  to  affect  the  case,  supposing  that  were  possible ;  but 
it  would  be  to  imply,  where  the  first,  or  any  subsequent  railway 
company,  had  expressly  exempted  themselves  from  the  responsi- 
bility for  the  carriage  over  connecting  roads,  a  new  contract  be- 
lt was  consigned  to  a  person  residing  there,  to  his  wagon.  He  made  his  contract  with 
Having  been  received  by  the  defendants,  the  defendants.  They  agreed  to  deliver 
thus  addressed  and  consigned,  they  must  his  wagon  safely  at  Burlington.  Wliether 
be  understood,  in  the  absence  of  any  proof  they  were  to  carry  it  upon  their  own,  or 
to  the  contrary,  to  have  agreed  to  deliver  the  road  of  some  other  corporation,  was  a 
it,  in  the  same  order  and  condition  in  question  which  did  not  concern  the  plain- 
which  it  was  received,  to  the  consignee,  tiff.  If  the  defcn<]ants  had  thouglit  fit  to 
It  was  no  pnrt  of  the  plaintiffs  business  limit  their  liability  to  iiijuri(?s  occurring 
to  inquire  how  many  different  corporations  on  their  own  road,  thc^y  siiould  have  pro- 
made  up  the  entire  line  of  road  between  vided  for  such  limitation  in  their  contract." 
Troy  and   Burlington  ;    or,  having  ascer-  ^  24  N.  Y.  269. 

tained  this,  to  determine  at  his  peril  which  ^  New  York  Acts,  ch.  270  of  1847. 

of  such  corporations  had   been  guilty  of  ^  45  N.  Y.  524. 

the  negligence  which  resulted  in  the  injury 


128  COMMENTARIES   ON   SALES.  [BOOK   III. 

tween  each  and  every  one  of  the  connecting  roads  and  the  original 
shipper,  with  whom  they  had  never  been  in  contract  at  all,  to  carry 
the  goods  over  their  OAvn  and  all  the  subsequent  connecting  roads 
in  the  whole  line  of  railway.  That  is,  the  very  thing  that  in  Mas- 
champ  V.  The  Lancaster  Ry.  Co.^  (where  it  was  held  that  the  cir- 
cumstances of  that  case  would  justify  a  jury  in  inferring  that  the 
receiving  railway  had  impliedly  contracted  with  the  shipper,  from 
whom  they  had  received  the  goods,  for  their  conveyance  over  the 
entire  route)  they  wished  to  avoid,  namely,  the  necessity  of  imply- 
ing that  the  shipper  must  be  supposed  to  have  made  a  new  con- 
tract with  every  one  of  the  connecting  roads,  would  have  to  be 
implied ;  and  not  only  that,  but  right  in  the  very  teeth  of  the 
English  decisions  and  of  common-sense,  while  such  a  contract 
would  have  to  be  assumed  as  to  make  the  first  company  liable 
exclusively,  on  their  implied  contract,  for  the  loss  of  the  goods 
over  the  whole  route,  the  contradiction  would  also  have  to  be 
assumed  that  such  a  liability  was  not  exclusive,  but  that  each  of 
the  subsequent  connecting  companies,  no  matter  how  many  of 
them  there  might  be,  had  also  an  exclusive  liability  for  the  loss 
of  the  goods  on  their  road  and  on  all  the  subsequent  connect- 
ing roads.  And  this  absurdity  and  self-destructive  contradiction 
would  have  to  repeat  itself  as  often  as  there  was  a  connecting 
road  on  the  entire  route  of  railways. 

Try  the  question  out  with  an  express  contract,  and  the  absurdity 
of  this  is  exposed.  If  an  express  contract  is  made  by  a  shipper 
with  the  A.  company,  for  the  conveyance  of  goods  over  the  lines 
of  the  A.,  B.,  C,  and  D.  companies,  there  is  but  one  contract, 
which  is  between  the  shipper  and  the  A.  company,  and  the  B.,  C, 
and  D.  companies  are  not  liable,  in  contract,  for  the  breaches  of 
A.'s  contract,  no  matter  on  what  portion  of  the  lines  such  breach 
may  have  been  committed.  Precisely  in  the  same  way  is  it  in  the 
case  of  an  implied  contract  (and  this  is  one,  and  a  very  important 
one,  of  the  media  by  which  it  can  be  ascertained  as  to  what  the 
contract  is  which  is  to  be  implied) ;  if  the  contract  to  be  implied 
is  with  the  first  company,  then  it  is  with  that  company  exclu- 
sively, and  the  subsequent  companies  are  no  more  parties  to  that 
contract,  because  it  is  raised  or  implied  from  the  surrounding 
facts  and  circumstances,  than  they  would  have  been  if  a  similar 
contract  to  that  which  is  to  be  implied  had  been  expressed.  This, 
we  think,  is  sufficient  to  show  the  absurdity  of  the  position  in 
Root  V.  The  Great  Western  R.  R.  Co.^  taken  by  the  New  York 
Court  of  Appeals,  that  to  hold  in  that  case  that  the  defendants 
were  not  liable  would  be  to  hold  counter  to  the  whole  line  of 

1  8  M.  &  W.  421.  2  45  N.  Y,  524. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS. 


129 


English  decisions.  We  think  no  stronger  or  plainer  instance  of 
the  palpable  misunderstanding  which,  we  think,  largely  prevails 
in  this  country  as  to  the  effect  of  the  English  cases  on  the  ques- 
tion, can  be  found. ^ 

The  glaring  error  made  in  these  cases  as-  to  the  effect  of  the 
holding  in  England  is  in  assuming,  as  they  in  effect  do,  that 
where  in  Muschamp  v.  Lancaster  Ry.  Co.^  it  was  held  that  the 
fact  of  the  goods  being  specifically  marked  for  a  destination 
was  some  evidence  from  which  a  jury  might  infer  a  contract 
by  the  receivers  of  such  goods  to  carry  them  to  the  designated 
place,  for  which  they  ostensibly  received  them ;  that  such  evi- 
dence—  which,  clearly,  is  evidence  to  that  effect,  so  far  as  it 
goes  —  is  treated  in  the  English  cases  as  though  it  were  con- 
clusive.    That  such  is  an  entire  misconception  we  have  clearly 


1  It  was  found,  in  the  case  in  question, 
by  the  referee  in  the  court  below,  that  the 
defendants  were  liable  ;  the  only  evidence 
in  support  of  such  finding  being  the  ad- 
mission of  the  parties  on  tlie  trial  that  the 
goods  were  shipped  at  New  York,  with 
the  A.  Company,  from  whom  the  defend- 
ants received  them  at  Suspension  Bridge, 
and  that  the  goods  were  marked  "Burr 
Oak,  Michigan."  The  court,  in  deciding 
that  the  defendaTits  were  not  liable,  as  we 
think  it  is  perfectly  clear  that  they  were 
not,  say  :  "  It  is  found  that  the  goods 
were  received  by  the  defendants  without 
any  express  contract  or  limitation  of  lia- 
bility, and  in  the  ordinary  course  of  their 
business  and  duty  as  common  carriers,  and 
there  is  no  evidence  of  any  express  contract 
as  to  their  transportation  by  the  defend- 
ants. Unless,  therefore,  the  receipt  of 
goods  thus  marked,  in  the  ordinary  course 
of  business  of  a  earlier,  raises  by  operation 
of  law  an  implied  contract  to  carry  them 
beyond  the  line  of  the  carrier  receiving 
them,  and  to  deliver  them  at  the  final  des- 
tination designated  by  the  marks,  there  is 
no  foundation  for  the  finding  of  any  such 
contract.  The  English  authorities  hold 
that  in  such  a  case,  the  company  first  re- 
ceiving the  goods  marked  for  a  particular 
place,  without  exj)ressly  limiting  its  re- 
sponsibility, undertakes  prima  facie  to 
carry  them  to  their  destination,  even 
though  beyond  the  limits  of  the  company's 
I'oute,  and  is  to  be  regarded  as  a  carrier 
throughout  the  entire  route  ;  and  that  this 
rule  applies  when  the  goods  are  directed  to 
j)oints  even  beyond  the  limits  of  England  ; 
and  the  English  cases  have  carried  the  rule 
so  far  as  to  hold  the  contract  is  exclusively 
with  the  first  company  [How  then  can  their 
reasoning  be  so  distorted  as  to  make  it  sig- 
nify that  it  is  with  each  successive  com- 
pany, and  with  each  successive  company 

VOL.    II. 


exclusively,  too,  as  is  implied  by  the  state- 
ments and  reasoning  of  the  court  in  Root 
V.  The  Great  Western  K.  R.  Co.,  45  N.  Y. 
524  ?  ],  and  that  there  is  no  right  of  action 
in  favor  of  the  owner  against  any  of  the 
subsequent  companies  on  the  route.  [But, 
by  their  distortion  of  the  holding  in  the 
English  cases,  they  would  really  assume 
that  the  English  cases  hold  the  nonsensical 
contradiction  that  while  "  there  is  no  right 
of  action  in  favor  of  the  owner"  — that  is,  in 
contract —  "against  any  of  the  subsequent 
companies  on  the  route,"  there  is  an  action 
in  contract  against  each  of  them,  and 
that  "exclusively,"  too,  against  each  and 
every  one  of  them.]  But  a  different  rule 
has  been  adopted  in  this  and  other  States 
of  the  Union,  and  it  is  here  held  that  the 
receipt  of  goods  marked  for  a  place  beyond 
the  terminus  of  the  carrier's  route  does  not 
import  a  contract  to  carry  them  to  their 
final  destination  ;  but  that,  in  the  absence 
of  a  special  contract  ["special  contract" 
again  !  ]  and  of  a  partnersliii)  between  the 
connecting  lines  [This,  apparently,  is 
matter  outside  of  what  is  called  the  "spe- 
cial contract  "  ] ,  the  carrier  is  only  respon- 
sible to  the  extent  of  his  own  route,  and 
for  the  safe  delivery  to  the  next  connecting 
carrier  ;  that  in  such  a  case  the  carrier  is 
merely  a  forwarder  from  the  terminus  of 
his  own  line;  and  that  where  goods  thus 
marked  are  delivered  to  a  cariier,  unac- 
companied by  any  particular  directions 
except  such  as  might  be  inferred  from  the 
marks  themselves,  the  carrier  is  only  bound 
at  the  terminus  of  his  own  line,  to  deliver 
them  according  to  the  established  usage  of  ■ 
the  business  in  which  he  is  engaged." 
Tliis  is,  in  effect,  the  same  language  as  that 
in  Judge  IJedfield's  works  on  Carriers  and 
Railways,  which  we  have  quoted,  and  the 
incorrectness  of  whiih  we  have  j)ointed  out. 
2  8  M.  &  \Y.  421. 


130 


COMMENTARIES   ON   SALES. 


[book   III. 


shown,  and  the  decisions  in  Upston  v.  Clark,i  Gilbert  v.  Dale,^ 
Sjms  v.  Chaplin,^  and  even  Scothorn  v.  South  Staffordshire  Ry. 
Co.*  (not  to  mention  Garside  v.  The  Trent  Nav.  Co.,^  and  other 
cases  of  that  class,  to  which  we  have  referred)  plainly  show  the 
incorrectness  of  the  deduction  as  to  the  effect  of  the  holding  of  the 
English  cases,  so  glaringly  manifest  in  several  of  the  text-books, 
and  in  many  of  the  cases  in  this  country. 

For  the  statement  ot  the  result  of  the  American  decisions.  Van 
Santvoord  v.  St.  John^  is  cited  in  Root  v.  The  Great  Western 
R.  R.  Co.'^  But  we  have  already  shown  that  that  case  is  clearly 
distinguishable  from  Muschamp  v.  The  Lancaster  Ry.  Co.,^  and 
that  it  expressly  distinguished  and  in  effect  sustained  Weed  v. 
The  Saratoga,  &c.  R.  R.  Co.,^  which  was  decided  concurrently 
with,  and  in  ignorance  of  the  holding  in,  Muschamp  v.  The  Lan- 
caster Ry.  Co., I*'  with  which  case  it  is  in  principle  identical. ^^ 


1  2  C.  &  P.  598. 

2  5  A.  &  E.  543. 

3  5  A.  &  E.  634. 
*  8  Ex.  341. 

5  4  T.  R.  581. 

6  6  Hill,  158. 

^  45  N,  Y.  524. 

8  8  M.  &  W.  421. 

9  19  Wend.  534. 
W  8  M.  &  W.  421. 

11  The  court,  in  Root  v.  The  Great  West- 
ern R.  R.  Co.,  45  N.  Y.  at  p.  532,  further 
say:  "Such  an  understanding  may  be 
established  by  express  contract,  or  by 
showing  that  the  company  held  them- 
selves out  as  carriers  for  the  entire  dis- 
tance, or  received  freight  for  the  entire 
distance,  or  other  circumstances  indicat- 
ing an  understanding  that  it  was  to  carry 
through  ;  but  at  the  time  of  the  passage  of 
the  Act  of  1847,  it  had  been  settled  by 
the  case  of  Van  Santvoord  v.  St.  John, 
that  the  marks  on  the  goods  were  not 
of  themselves  evidence  of  such  an  under- 
taking." This,  again,  admirably  shows 
how  greatly  the  effect  of  the  English  cases 
has  been  distorted.  "Not  of  themselves 
evidence  of  such  an  undertaking."  This 
hmguage  means  either  that  the  English 
cases  hold  that  such  evidence  is  either 
conclusive  evidence  or  that  it  is  not  con- 
clusive evidence,  but  that  it  is  some  evi- 
dence of  such  fact.  Here,  then,  is  a 
dilemma.  If  the  language  means  any- 
thing at  all,  it  means  that,  contra  to 
the  alleged  English  holding,  such  mark- 
ing is  not  conclusive  evidence  ("of  them- 
selves") of  such  an  undertaking.  There 
is  not  a  solitary  English  case  holds  it  is. 
In  fact,  as  we  have  clearly  and  exhaust- 
ively shown,  the  English  cases  merely  hold 
that  it  is  some  evidence  for  the  considera- 
tion of  a  jury,  from  which  it  may  be  compe- 


tent for  them  to  infer  such  an  undertaking. 
Why,  even  Bristol  &  Exeter  R.  R.  v.  Col- 
lins, 7  H.  L.  Cas.  194  (which  is  a  case,  in 
the  facts,  almost  identical  with  Root  v. 
The  Great  AVestern  R.  R.  Co.,  45  N.  Y. 
524,  and,  as  regards  the  ett'ect  of  the 
marks,  decided,  too,  in  identically  the 
same  way),  shows  that  the  receipt  of  goods 
so  marked  is  not  held  in  England  as  con- 
clusive as  to  the  liability  of  the  company 
receiving  the  goods  so  marked  ;  because 
the  defendants  in  that  case  did  receive  the 
goods  so  marked,  and  it  was  held  that 
they  were  not  liable,  on  an  implied  con- 
tract, for  their  carriage,  which  tliey  would 
have  been  if  such  evidence  were  conclu- 
sive. But  take  the  other  horn  of  the  di- 
lemma, and  assume  that  the  New  York 
Court  meant  that  the  English  cases  mean 
that  such  marks  are  not  some  "evidence 
of  such  an  undertaking,"  and  that  such 
holding  is  incorrect.  The  manifest  ab- 
surdity of  this  view  is  equally  apparent. 
An  express  contract  to  take  the  goods  to 
such  a  specified  destination  would  bind 
the  contractors  so  receiving  the  goods 
to  take  them  to  the  named  destination. 
Why,  tiien,  should  not  the  fact  that  the 
common  carriers,  who  receive  goods  for 
carriage,  have  so  received  them  specifically 
marked  for  a  designated  place  to  which 
they  are  consigned,  and  to  which  they  are  to 
be  transported,  —  this  fact  being  not  only 
implied  but  expressed  by  their  address,  — 
be  some  evidence  that  by  such  receipt  of 
goods  so  marked  the  carriers  impliedly  con- 
tract to  carry  them  to  their  marked  destina- 
tion ?  If  the  designated  place  were  on  their 
own  immediate  route,  such  evidence,  in  the 
large  majority  of  the  cases,  would  not  only 
be  some  evidence  of  that  fact,  but  would 
be  virtually  conclusive  of  it.  Why,  then, 
when,  as  far  as  the  shipper  is  concerned, 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      131 

Returning  more  immediately  to  Root  v.  The  Great  Western 
R.  R.  Co.,^  we  would  remark  that,  as  it  would  be  competent  for 
an  intermediate  company,  by  express  contract,  to  assume  the 
responsibility  for  the  carriage  of  goods  over  successive  lines ;  so, 
equally,  might  they,  by  the  implication  resulting  from  facts  and 
•circumstances,  imjjliedly  so  contract  to  carry  goods.  Thus,  if, 
notwithstanding  the  goods  had  been  shipped  by  another  railroad 
company  to  the  starting  point  of  the  intermediate  company,  the 
original  shipper  or  his  agent  were  present  and  re-shipped  the 
goods,  presumably  similar  facts  and  circumstances  to  those  from 
which  a  contract  might  have  been  implied  with  the  first  company 
receiving  the  goods,  might  also  raise  an  implied  contract  with  the 
second  or  connecting  company  ;  and  so  with  any  other  later  com- 
pany on  the  line  of  route.  Or  such  might  be  the  case  where  the 
contract  of  the  first  company  —  as  in  Root  v.  The  Great  Western 
R.  R.  Co.^  —  for  the  carriage  had  been  entirely  ended  ;  and  the 
first  company  delivered  the  shipper's  goods  as  the  agents  of  the 
shipper.  In  such  a  case  the  mere  receipt  of  the  goods  marked 
for  a  designated  point  might  be  evidence  —  as  far  as  it  goes  ^of 
an  implied  undertaking  by  the  receiving  company  to  carry  them 
to  such  designated  point ;  and  if  the  second  company,  in  addition 
to  receiving  the  goods  so  marked  for  a  definite  point,  exacted  from 
the  first  company,  as  the  agents  of  the  shippers,  the  full  payment 
for  the  freight  to  that  point,  that  would  be  additional  evidence 

the  designated  point  may  or  may  not  be,  ing  at  all,  not  only  an  express  contract, 
for  aught  he  knows,  on  their  own  immedi-  but  anything,  outside  of  the  mnrkhig  of  the 
ate  route,  or  on  a  road  over  which  they  have  goods,  troili  which  a  contract  can  be  im- 
running  powers,  or  which  is  in  partnership  plied.  But  it~  nowhere  appears  wdiy  they 
with,  or  otherwise  controlled  by,  them-  should  eliminate  the  fact  of  the  goods 
selves,  may  not  such  fact  be  some  evidence,  being  marked  for  a  particular  destination, 
among  other  circumstances,  from  which  a  as  the  place  to  which  exj)ressly  they  are 
jury  may  infer  a  contract,  by  the  company  consigned  and  to  be  conveyed,  as  one  of 
so  receiving  the  goods,  to  cany  them  to  the  ingredients  —  and,  certainly,  on  the 
the  place  for  which  they  are  specifically  very  face  of  it,  a  higlily  significant  one 
marked  ?  So,  on  the  one  hand,  if  they  too  —  from  which  a  contract  with  the  car- 
say  they  mean  that  the  English  cases  hold  rier  who  receives  them  for  such  convey- 
that  such  evidence  is  conclusive,  the  Eng-  ance  may  be  implied  that  he  is  to  carry 
lish  cases  themselves  show  that  such  an  them  safely  to  such  designated  place.  The 
assumption  is  incorrect.  If,  on  the  other  result  of  tlieir  statements  of  the  law,  and 
hand,  they  mean  that  the  English  cases  of  their  use  in  the  way  in  which  they  em- 
hold —  as  thej'  do  hold  —  that  such  evi-  [iloy  it,  of  the  term  "special  contract," 
dence  is  some  evidence  for  a  jury,  with  shows  that,  for  some  entirely  unexplained 
other  facts,  then  no  American  writer  or  reason,  the  implication  arising  from  the 
case  has  ever  yet  shown,  or  can  show,  goods  being  specially  marked  for  a  par- 
why  that  alone,  of  all  the  facts,  is  not  ticular  destination  must  always  be  ig- 
some  evidence  of  that  which  it  unques-  nored.  This  is  the  marked  error  in  so 
tionalily  so  jilainly  implies.  many  of  the  cases,  as  in  Root  v.  The  Great 
The  same  jialpable  error  is  also  shown  Western  R.  R.  Co.,  45  N.  Y.  524,  where 
by  the  fre(|uent  use  of  the  term  "special  the  effect  of  the  English  cases  has  been 
contract,"  by  which  the  courts  seem  to  so  palpably  misstated,  because  so  grossly 
mean,  as  far  as  the  contradictory,  inco-  misunderstood, 
herent  way  in  which  they  use  the  term  ^  45  N.  Y.  524. 
admits  of  an  understanding  of  their  mean-          ^  ijjid. 


132 


COMMENTARIES    ON    SALES. 


[book   III. 


from  which  a  jury  might  be  warranted  in  finding  that  the  second 
company  had  contracted  with  the  shipper,  through  his  agents,  the 
first  company,  for  the  safe  carriage  of  the  goods  to  their  ultimate 
designated  destination.  These  are  simply  ingredients  for  the 
court  and  jury  in  the  construction  of  the  contract.  But  in  Root 
V.  The  Great  Western  R.  R.  Co.,i  as  is  shown  by  the  court,  there 
was  no  evidence  that  tiie  defendants  "  held  themselves  out  as  car- 
riers for  the  entire  distance,  or  received  freight  for  the  entire  dis- 
tance, or  other  circumstances  indicating  an  understanding  that 
they  were  to  carry  the  goods  through  ;  "  but,  on  the  contrary,  the 
evidence  showed  that  they  were  only  to  receive  payment  for  car- 
rying the  goods  over  their  own  portion  of  the  route  ;  that,  at  the 
termination  of  their  own  route,  they  handed  over  the  goods  to  an- 
other company,  taking  a  receipt  therefor,  and  all  their  power  over 
the  goods  and  custody  of  them  ceased,  and  that  they  had  no  com- 
munity of  interest  or  partnership  with  the  company  to  whom  they, 
as  mere  forwarders  from  the  termination  of  their  own  road,  form- 
ally delivered  the  goods,  receiving  payment  for  the  freight  only 
to  .that  point.  This  case  is  in  all  respects  —  with  the  additional 
point  that  in  this  case  the  company  was  an  intermediate  company, 
and  not  the  original  company  which  received  the  goods  from  the 
shipper  —  essentially  identical  with  Van  Santvoord  v.  St.  John,^ 
which  latter  case,  as  we  have  seen,  is  in  perfect  accord  with  the 
English  cases,  and  expressly  distinguishes  and  sustains  Weed  v. 
Saratoga,  &c.  R.  R.  Co.,^  a  case,  in  its  turn,  virtually  identical 
with  the  English  case,  with  which  it  was  contemporaneously  de- 
cided^ Muschamp  v.  Lancaster  Ry.  Co. ;  ^  the  ruling  of  Rolfc,  B., 
in  which  latter  case,  has  given  rise  to  so  great  a  misunderstanding 
in  this  country  of  what  the  English  cases  really  hold  in  the  matter.* 
Root  V.  United  States  Express  Co.^  is  another  well-decided  New 
York  case.  There  the  defendants,  whose  line  extended  only  from 
Cliicago  to  New  York,  gave  a  receipt  for  a  package  which  they 
were  to  forward  to  Dalton,  there  being  an  express  agreement  that 
they  were  not  to  be  held  liable,  "  except  as  forwarders  only." 
The  defendants  having  proved  that  they  carried  the  package  safely 
to  the  termination  of  their  own  route.  New  York,  and  having  there 
duly  forwarded  it  for  Dalton  by  the  Adams  Express  Co.,  were 


i  45  N.  Y.  .524. 

2  6  Hill,  158. 

3  19  Wend.  534. 

4  8  M.  &  W.  421. 

5  A.side  from  the  great  misapprehen- 
sion of  the  effect  of  the  English  cases  in 
some  of  the  American  cases  which  we  have 
examined,  — notablj'  in  Root  v.  The  Great 
Western  R.  R.  Co.,  45  N.  Y.  524, —we 
feel  quite  satisfied  that,  on  the  "special" 


(particular,  not  general,  simply)  facts  in 
these  latter  cases,  there  is  not  one  of  thera 
which  we  have  so  far  examined  in  this 
connection  but  what  would  have  been  sus- 
tained in  England,  under  the  law,  as  well- 
decided  there,  —  including,  as  well  as  the 
others.  Van  Santvoord  v.  St.  John,  G  Hill, 
158,  and  Root  v.  The  Great  Western  R.  R. 
Co.,  45  N.  Y.  524. 
6  48  N.  Y.  462. 


PART  11.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS. 


133 


held  to  have  performed  their  contract.  The  charge  made  by  the 
defendants  was  held  to  be  but  a  reasonable  charge  for  the  convey- 
ance of  the  package  to  New  York ;  and  —  we  think  with  greater 
wisdom  than  the  House  of  Lords  manifested  in  Bristol,  &c.  Ry. 
Co.  V.  Collins,!  where  they  construed  to  send  as,  not  to  forward, 
but  to  carry  —  the  court  held  "  to  forward  "  meant  not  to  carry 
but  to  send ;  a  decision,  we  think,  which  goes  some  way  towards 
showing  the  unsoundness  of  the  construction  of  "  to  send  "  by  the 
House  of  Lords. 

In  Root  V.  United  States  Express  Co.,^  the  court  below,  forget- 
ting the  rule  that  "  there  are  no  degrees  in  secondary  evidence," 
improperly  rejected  evidence  that  was  clearly  admissible.  On  this 
ground  as  well  as  that  the  defendants  were  liable  for  the  safe  car- 
riage of  the  parcel  over  the  entire  route,  the  decision  of  the  court 
below  was  very  properly  reversed. 

In  Babcock  v.  The  Lake  Shore  R.  R.  Co.,^  we  find  the  court  * 
repeating  their  inaecurate  statements,  on  which  we  have  com- 
mented so  fully  .^ 


1  7  H.  L.  Cas.  194. 

2  48  N.  Y.  462. 

3  49  N.  Y.  491,  495. 

*  Citing  Eedfield  on  Carriers,  §  181, 
and  Root  v.  The  Great  Western  Ey.  Co., 
45  N.  Y.  524. 

s  Tims  they  say :  "  Had  the  goods 
been  received  without  a  special  contract, 
a  contract  would  not  have  been  implied 
[used  conversely  to  "special"],  on  the 
part  of  the  lailway  company,  to  carry  the 
goods,  or  provide  for  their  carriage,  be- 
yond the  terminus  of  their  road.  Their 
whole  duty  would  have  been  performed  by 
transjtorting  them  to  the  extent  of  their 
own  route,  and  delivering  them  to  the 
next  con7iecting  carrier  ;  that  is,  the  rail- 
way company  would  have  been  liable  as  a 
carrier  over  its  own  road,  and  as  a  for- 
warder from  the  terminus  of  its  line.  This 
is  the  recognized  rule  in  this  and  other 
States,  although  it  is  otherwise  in  Eng- 
land." In  this  extract  "special  contract" 
is  used  as  the  equivalent  of  express  con- 
tract, and  the  conclusion  here  would  be, 
that  in  this  country  the  holding  has 
generally  been,  that  only  by  an  express 
contract  can  carriers  bind  themselves  be- 
yond their  own  route.  This,  indeed,  is 
piling  Pelion  on  Ossa  !  Very  clearly  no 
such  absurdity  as  this  is  sustained  by  the 
English  cases,  and  the  New  York  court 
will,  we  take  it,  find  very  few  American 
cases  which  will  justify  the  assertion  that 
it  is  the  recognized  rule  in  this  country 
that  there  can  be  no  such  contract  excejit 
as  the  result  of  an  express  agreement.  In 
the  uncertain  manner  in  which  the  term 


"special  contract"  is  used  by  the  text- 
writers,  and  in  many  of  the  cases,  it  is 
not  singular  that  the  New  York  Court  of 
Appeals  should  have  been  led  into  such 
an  error.  The  English  and  American  cases 
alike  hold  that  such  a  contract  may  be 
either  expressed  or  implied;  and  we  find  so 
far  that  ])ractically  there  is  really  no  differ- 
ence in  their  holding  as  to  the  facts  and  cir- 
cumstances from  which  such  a  contract  is 
to  be  im])lied.  Where,  as  in  Babcock  v.  The 
Lake  Shore  Ry.  Co.,  49  N.  Y.  491,  the 
written  contract  expresses  that  the  goods 
are  deliverable  at  the  terminus  of  their 
own  railway,  and  freight  is  paid  to  that 
point,  and  to  that  point  only,  the  goods 
being  only  deliverable  there  on  the  freight 
and  charges  being  paid,  there  is  no  room 
for  an  implication  of  a  contract  to  carry 
them  further.  With  regard  to  their  criti- 
cism of  Bristol  &  Exeter  Ry.  Co.  v.  Col- 
lins, 7  H.  L.  Cas.  194  ;  s.  c.  5  H.  &  N. 
969,  which  whs  a  question  as  to  the  con- 
struction of  a  written  contract,  if  the 
House  of  Lords  were  right  —  doubts  with 
reference  to  which  we  have  already  ex- 
pressed—  as  to  their  construction  of  the 
contract,  as  an  express  contract  with  the 
first  company  for  the  carriage  of  the  goods 
over  the  entire  route,  then  it  is  quite  clear 
that  that  expressly  contracting  company 
would  be  alone  liable,  whether  under  the 
decisions  in  England  or  here,  in  an  action 
under  the  contract  foi-  the  loss  of  the  goods 
over  any  portion  of  the  entire  route,  where 
there  is  no  other  portion  of  the  contract 
exempting  them  from  such  liability.  In 
Condict  V.  The  Grand  Trunk  Ry.  Co.,  54 


134 


COMMENTARIES   ON    SALES. 


[book   III. 


Berg  V.  The  Narragansett  Steamship  Co.^  is  another  case  which, 
like  so  many  of  the  other  cases  we  have  examined,  while  super- 
ficially appearing  as  though  opposed  to  the  English  cases,  is 
really  decided  in  the  strictest  accordance  with  them.  The  head- 
note,  in  the  stereotyped  way,  is  :  "A  common  carrier  is  not,  in  the 
absence  of  a  special  contract,  liable  for  goods  beyond  his  own 
route,  although  he  receives  them  marked  for  a  particular  destina- 
tion." Yet  in  this  case,  which  is  essentially  the  same  case  as 
Muschamp  v.  The  Lancaster  Ry.  Co. ,2  the  carrier,  as  in  that  case, 
who  had  received  the  goods  "  marked  for  a  particular  destination," 
was  so  held  liable.  The  next  head-note  is  :  "  Such  a  special  con- 
tract may,  however,  be  shown  by  the  recitals  in  the  receipt  for  the 
goods,  and  the  manner  in  which  the  list  is  made  up,  and  also  from 
the  fact  that  a  through  freight  is  charged,  and  that  the  connecting 
carriers  have  a  contract  with  each  other  by  which  to  carry  freight 
through  for  a  single  price  to  be  divided  between  them."  But  why 
each  of  these  incidents  in  the  case  is  to  be  considered  important 
in  showing  that  there  is  such  a  special  contract,  —  which,  in  this 
case,  means  a  contract  to  be  implied  from  the  circumstances,  — 
and  the  certainly  not  less  important  fact  that  the  goods  are  re- 
ceived for  the  purpose  of  being  carried  to  the  place  to  which  —  to 
indicate  that  fact  —  they  are  specifically  addressed,  is  to  be  neg- 


N.  Y.  500,  502,  where  again  a  misappre- 
hension of  the  nature  of  the  English  de- 
cisions, similar  to  that  which  we  have 
pointed  out  in  the  other  cases,  is  mani- 
fested, the  decision,  although  nominally 
repudiating,  virtually  follows,  Muschamp 
V.  Lancaster  Ey.  Co.,  8  M.  &  W.  42L  In 
Condict  V.  The  Grand  Trunk  Ry.  Co.,  54 
N.  Y.  500,  the  form  of  the  railway  receipt 
is  not  given,  but  a  contract  was  implied 
to  carry  the  goods  to  Chicago,  from  the 
facts  in  the  case,  which  were  that  the 
goods  were  received  by  the  defendants, 
marked  for  Chicago,  and  at  a  rate  "speci- 
fied of  64  cents  per  100  pounds  for  the 
whole  distance  ; "  and  the  defendants  were 
held  liable  for  the  goods,  although  they 
were  lost  by  an  accidental  tire  after  they 
had  reached  the  terminus  of  the  defend- 
ants' own  immediate  route.  This  case,  in 
its  actual  holding,  is  not  unlike  the  pre- 
vious New  York  cases,  —  AVeed  v.  Sara- 
toga, &c.  R.  R.  Co.,  19  Wend.  534,  and 
Hart  V.  The  Rensselaer,  &c.  R.  R.  Co.,  4 
Seld.  37,  —  which  are  so  clearly  in  accord 
with  the  English  cases,  and  which  have 
been  in  etfect  distinguished  and  ajiproved 
in  the  later  cases,  particularly  in  that  case 
which  has  been,  as  we  have  shown,  im- 
properly considered  as  establishing  a  doc- 
trine opposed  to  the  sound  holding  of  the 
English  cases  ;  Van  Santvoord  v.  St.  John, 
6  Hill,  157. 


In  Hinckley  17.  New  York  Central  R.  R. 
Co.,  56  N.  Y.  429,  the  court  say  :  "  We 
have  held  that  where  a  common  carrier 
has  received  freight  for  transportation,  un- 
der a  special  contract  limiting  his  liability 
at  common  law,  and  by  which  he  has  un- 
dertaken for  an  agreed  compensation  to 
carry  the  goods  to  the 'termination  of  his 
route,  and  then  to  deliver  to  another  car- 
rier, his  duty  will  end  when  the  goods 
have  reached  that  terminus,  and  have 
been  delivered  to  another  carrier."  This 
is  perfectly  good  law,  and  is  no  more  op- 
posed to  the  holding  in  the  whole  series 
of  well-decided  English  cases  upon  the 
question,  from  Muschamp  v.  Lancaster  Ry. 
Co.,  8  M.  &  W.  421,  down,  than  is  that 
other  English  case  (Garside  v.  The  Trent 
Nav.  Co.,  4  T.  R.  581)  which  Judge  Red- 
field  cites  (Kedf.  on  Carriers,  §  181  ;  2 
Redf.  on  Railways,  p.  131,  6th  ed.)  incor- 
rectly as  being  opposed  to  them.  Hinckley 
V.  New  York  Central  R.  R.  Co.,  56  N.  Y. 
429,  is  well  decided  on  the  same  princi- 
ples that  Garside  v.  The  Trent  Xav.  Co., 
4  T.  R.  581 ;  Babcock  v.  Lake  Shore  R.  R. 
Co.,  49  N.  Y.  491,  and  that  class  of  cases 
are,  under  an  express  agreement  showing 
that  at  the  termination  of  their  own  route 
they  were  to  assume  the  character  of  for- 
warders only. 

1  5  Daly,  394. 

2  8  M.  &  W.  421. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      135 

lected,  can  only  be  explained  on  the  ground  of  their  mistakingly 
treating  the  English  cases  as  holding  that  such  evidence  is  con- 
clusive, instead  of  merely  prima  facie,  evidence  —  as  far  as  in  the 
particular  case  it  may  go  —  of  such  an  undertaking  or  implied 
contract. 

The  case  is  even  a  stronger  one  than  Muschamp  v.  The  Lan- 
caster Ry.  Co. ;  ^  for  while  in  this  case,  as  in  Muschamp  v.  The 
Lancaster  Ry  Co.,  there  was  the  additional  evidence,  strength- 
ening the  implication,  from  the  address  of  the  goods,  of  there 
being  one  entire  contract  for  the  whole  route  —  of  one  entire 
charge  for  the  through  freight ;  in  this,  the  New  York  case,  unlike 
the  English  case,  it  was  affirmatively  proved  that  though  a  through 
freight  was  to  be  received,  it  was  to  be  "  apportioned  and  divided 
between  the  companies;"  the  implication,  therefore,  not  being 
as  strong  as  in  the  English  case,  where  there  was  nothing  to  indi- 
cate that  the  whole  through  freight  might  not  have  been  for  the 
originally  receiving  and  contracting  company.  And  yet,  in  this 
case,  the  goods  being  received  on  Ijoard  the  boat  for  Boston,  as  the 
goods  in  the  English  case  were  received  for  their  marked  destina- 
tion ;  the  defendants'  agent  in  this  case,  like  the  defendants'  agent 
in  the  English  case,  "  gave  no  notice  or  intimation  at  the  time  that 
defendants'  route  terminated  "  short  of  the  ultimate  destination  as 
per  the  receipt  of  the  so-addressed  goods,  "  nor  was  that  fact  in  any 
way  brought  to  plaintiff's  knowledge  prior  to  his  loss ; "  the  decision 
was  precisely  the  same  as  in  the  English  case,  namely,  that  the 
originally  receiving  and  contracting  company  were  liable,  on  their 
implied  contract,  for  the  loss  of  the  goods  before  they  reached 
their  ultimate  destination  of  address  and  contract,  even  though 
the  goods  had  been  safely  conveyed  by  the  defendants  over  their 
own  immediate  route,  and  there  safely  delivered  to  the  connecting 
company.  In  this  case  too,  as  in  the  English  cases,  there  seems 
to  have  been  no  prepayment  of  the  freight  to  the  defendants,  but 
it  was  to  be  collected  at  the  other  end  of  the  route,  —  "  the  through 
freight  for  the  entire  route  being  specified  and  charged^  As  not 
•only  the  principal,  but  all  the  material  facts,  in  the  two  cases,  are 
to  all  intents  identical,  the  sound  holding  in  Muschamp  v.  The 
Lancaster  Ry.  Co.^  being  so  clearly  affirmed  by  the  holding  in  Berg 
V.  The  Narragansett  Steamship  Co.,^  the  comments  (which  we 
quote  in  our  note  below)  in  the  latter  case  upon  and  deductions 
from  some  of  the  other  New  York  cases,  will  show  how  difficult  is 
the  eradication  of  error,  even  from  the  minds  of  those  whose  own 
decision  should  have  given  them  a  better  appreciation  of  truth.* 

1  8  M.  &  W.  421.  4  They  sav  (at  p.  SO.*)):    "In  Toy  v. 

2  Ibid.  The  Troy  &  JBoston  R.  ]i.  Co.,  24  Barb. 
8  5  Daly,  394.  382,  it  was  held   that  where  property  is 


COMMENTARIES   ON   SALES. 


[book    III. 


The  cases  in  the  State  of  Maine  are  also  cited  ^  as  being  opposed 
to  the  doctrine  of  the  English  cases.  The  first  of  these  is  Perkins 
V.  Portland,  &c.  R.  R.  Co.^  In  this  case,  construing  the  term 
''  special  contract "  to  mean  express  contract,^  it  was  distinctly 
claimed  that,  "  without  an  express  contract,  the  carrier  is  only 
liable  to  the  extent  of  his  own  route,  and  for  safe  storage  and 
delivery  to  the  next  carrier."  For  this  utterly  unsound  position 
Redfield  on  Railways,  and  some  of  the  New  York  and  Massachu- 
setts cases  which  we  have  examined,  are  cited,  as  well  as  Gar- 
side  V.  Trent  &  Mersey  Trans.  Co. ;  *  but,  as  we  have  shown, 
while  Redfield  entirely  misstates  the  law  in  the  matter,  not  one 
of  the  New  York  or  Massachusetts  cases  cited  sustains  the  po- 
sition for  which  they  are  cited.  In  the  Maine  case  itself,  the 
contract  was  an  express  one,  and  the  court  held  that  the  com- 
pany were  liable  for  the  carriage  of  the  goods  over  the  whole 
route  with  reference  to  which  they  had  contracted.^ 


received  by  a  carrier  for  transportation, 
addressed  to  a  person  beyond  tlie  route  of 
sucli  carrier,  in  the  absence  of  proof  an 
agreement  will  be  inferred  on  his  part  to 
deliver  the  ])roperty  as  directed.  The  con- 
trary view  is  maintained  in  Wright  v. 
Boughton,  22  Barb.  561,  where  it  is  held 
that  a  copy  of  an  address  upon  a  delivery 
receipt  was  mere  matter  of  description, 
and  not  an  agreement.  But  the  rule  is 
now  settled  thai  a  common  carrier  is  not 
liable  for  loss  of  goods  beyond  his  own 
route,  although  he  receives  them  marked 
for  a  particular  destination."  For  this 
monstrously  absurd  conclusion  Root  v. 
Great  Western  R.  R.  Co.,  45  X.  Y.  524; 
Van  Santvoord  v.  St.  John,  6  Hill,  158;  Dil- 
lon V.  New  York  &  Erie  R.  R.  Co.,  1  Hilt. 
231;  Kreuder  v.  Woolcott,  1  Hilt.  223,  are 
cited  ;  and  this  is  essentially  what  in  the 
cases  and  by  the  text-writers  is  called  the 
"American  rule."  If  a  proper  analysis 
of  these  cases  do  not  of  itself  un-'' settle" 
such  a  "  rule,"  then  it  is  clear  that  a  few 
cases  like  Berg  v.  The  Narragansett  Steam- 
ship Co.,  5  Daly,  394,  so  thoroughly  har- 
monizing with  the  well-decided  English 
cases  on  the  subject,  must  certainly  have 
that  eifect.  It  expressly  held,  as  does 
Muschamp  v.  The  Lancaster  Ry.  Co.,  8 
M.  &  W.  421,  that  upon  such  evidence 
"the  question  of  defendants'  liability  was 
properly  submitted  to  the  jury,"  and  their 
finding  on  such  evidence  that  the  defend- 
ants were  liable  was  unanimously  affirmed 
by  the  New  York  Court  of  Common  Pleas. 
This  case  was  approved  in  Weil  v.  The 
Merchants'  Despatch  Trans.  Co.,  7  Daly, 
456,  460,  where,  in  the  usual  spirit  of 
those  cases,  it  is  said  of  the  prior  case  that 
it  was  there   decided  ' '  that   a  carrier  of 


goods  is  not  liable  for  loss  beyond  his  own 
route  unless  by  special  agreement.  In  that 
case  there  were  facts  from  which  such  an 
agreement  might  have  been  inferred."  By 
"  special  agreement "  here,  then,  is  simply 
meant  that  the  carrier  is  not  so  liable  ex- 
cept by  contract,  and  that  such  a  contract 
may  be  either  expressed  or  implied,  —  in- 
ferred from  the  facts  ;  such,  for  instance, 
as  those  which  alike  existed  in  tlie  two 
well-decided  cases  of  Berg  v.  The  Narra- 
gansett Steamshi])  Co.,  5  Daly,  394,  and 
Mu.schamp  v.  The  Lancaster  Ry.  Co.,  8 
i\I.  &  W.  421.  In  Weil  v.  The  .Merchants' 
Despatch  Trans.  Co.,  7  Daly,  456,  itself, 
there  was  an  express  contract  by  the  de- 
fendants for  the  carriage  and  delivery  of 
goods  to  a  named  point,  to  which  point 
they  safely  carried  and  delivered  the  goods, 
and  received  their  payment  for  the  freight 
to  such  point  only.  Of  coui-se,  under 
such  circumstances,  there  was  no  ground 
for  holding  that  they  were  liable  for  the 
subsequent  independent  acts  of  connecting 
carriers,  to  whom  the  goods  were  duly  de- 
livered by  the  defendants  at  that  point. 
So  much  for  the  New  York  cases  on  the, 
subject,  which  certainly  do  not  seem  to 
affect  the  English  cases  on  the  subject  any 
more  than  is  done  bj'  the  Massachusetts 
cases  previously  examined  by  us.  See 
supra,  p.   105  et  seq. 

1  See  note  to  Wells  v.  Thomas,  72  Am. 
Dec.  236;  note  to  Michigan  Central  R.  R. 
Co.  V.  Mineral  Springs  Manuf.  Co.,  Book 
xxi.  U.'S.  298. 

2  47  Me.  573. 

8  See  at  p.  586. 
*  4  T.  R.  581. 

^  In  so  deciding  they  say:  "  It  is  quite 
clear  that  a  common  carrier,  if  a  natural 


PART    II.]       CONTRACTS    FOR    THROUGH    CARRIAGE    OF    GOODS. 


137 


111  Skinner  v.  Hall,^  it  is  said :  "  Unless  by  special  contract,  a 
common  carrier  is  not  liable  for  goods  lost  beyond  the  end  of  his 
route."     In  this  case  there  was  a  special  contract,  evidenced  by 


person,  may  coutiact  to  carry  persons  or 
property  beyond  Lis  own  line,  and  thus 
make  the  carriers  upon  the  connecting 
lines  his  agents.  In  such  case  he  is  re- 
sponsible for  any  loss  or  injury  upon  any 
part  of  the  route.  Whether  the  same  rule 
applies  to  corporations  chartered  as  com- 
mon carriers  upon  Hues  designated  in  the 
statutes  by  wiiich  they  are  created,  is  not 
so  clearly  settled.  In  P^ngland  the  law  is 
well  established  by  a  series  of  decisions 
not  only  that  the  same  rule  applies  to  rail- 
way companies  as  to  natural  persons,  but 
that  in  either  case  if  a  common  carrier  re- 
ceives goods  marked  to  be  delivered  at  a 
place  beyond  the  limits  of  his  own  line,  he 
undertakes,  primd  facie,  to  carry  the 
goods  to  their  destination,  and  is  bound 
to  do  so,  unless  he  limits  his  responsibil- 
ity by  express  agreement  or  notice  at  the 
time  the  goods  are  received  [or  there  are 
other  facts  m  the  case  to  rebut  the  i-nfer- 
ence  in  cases  v:here  such  inference  arises^. 
This  doctrine  has  been  denied  in  this  coun- 
try ;  and  the  rule  has  been  held  to  be, 
when  a  railway  company  receives  goods 
marked  for  delivery  at  a  place  situated 
beyond  the  line  of  their  own  road,  that 
they  are  only  bound,  in  the  absence  of 
any  special  contract,  to  transport  and  de- 
liver them,  according  to  the  established 
usage  of  the  business,  to  the  carriers  of 
the  connecting  line,  to  be  forwarded  to 
their  ultimate  destination.  In  all  these 
cases  it  is  decided  or  admitted  that  a  rail- 
road company  may  by  special  contract  [the 
italics  are  their  own]  bind  themselves  to 
deliver  merchandise  at  a  place  beyond  the 
line  of  their  own  road  ;  and  that  in  such 
case  they  are  bound  as  common  carriers 
for  the  whole  route,  and  can  exonerate 
themselves  only  by  a  delivery  at  the  place 
of  destination."  For  these  propositions  a 
number  of  the  cases  which  we  have  ex- 
amined are  cited,  and  a  few  others  yet  to 
be  examined  by  us.  As  companies,  then, 
may  be  so  bound  by  special  contract,  which, 
as  all  the  cases  show,  and  is  purely  ele- 
mentary, may  arise  either  by  express  agree- 
ment or  from  circumstances  from  which  a 
contract  may  be  implied,  why,  in  the  ab- 
sence of  an  ex])ress  contract,  should  the 
important  fact  that  the  goods  have  been 
received  for  transportation  to  a  destination 
pointed  out  by  the  address  on  the  goods  as 
the  place  to  which  they  are  consigned,  and 
to  which  they  are  intended  to  be  conveyed, 
be  eliminated  from  the  facts  and  circum- 
stances which  show  whiit  it  is  the  inten- 
tion of  the  parties  that  the  contract  is  to 


be,  any  more  than  any  other  equally  or  less 
important  fact  tending  to  show  the  na- 
ture of  tlie  contract  should  be  eliminated  ? 
In  answer  to  this  it  may  be  said,  first, 
that  there  is  no  reason  whatever  for  such 
elimination;  aud,  second,  so  far  as  we  have 
yet  examined,  that  fact  —  any  more  in  the 
American  aises  than  in  the  Enylish  —  has 
not  in  one  solitary  case  been  eliminated 
in  an  attempt  to  arrive  at  a  construction 
of  the  contract  in  the  particular  case.  If 
we  do,  and  when  we  do,  find  .such  a  badlj-- 
decided  case,  we  shall  not  fail  to  notice  it. 
So  far,  at  least,  as  we  have  now  carried 
this  investigation,  we  have  found  not  one 
of  the  American  cases  where  the  impor- 
tant fact  of  the  receipt  by  carriers  of  goods 
to  be  conveyed  to  a  destination  indicated 
by  the  address  of  the  goods  has  in  princi- 
ple less  weight  attached  to  it  than  in  any 
of  the  English  cases,  including  Muschamp 
V.  Lancaster  Ry.  Co.,  8  M.  &  W.  421.  In 
the  Maine  case  it  is  said,  on  a  collateral 
point,  "  If  there  was  no  express  authority 
it  might  have  been  implied  from  a  mu- 
tual arrangement  for  the  carrying  business 
among  all  the  carriers  between  the  point 
where  the  goods  were  received  and  the 
place  of  delivery.  Where  such  an  arrange- 
ment actually  exists,  there  is  an  implied 
authority  on  the  part  of  the  agents  of  each 
comjiany  to  make  a  contract  that  shall 
bind  them  all."  And  in  this  case,  though 
it  is  singularl}'  said  by  the  court  (at  p.  592) 
that  the  agent  has  no  authority,  "  express 
or  imyjlied,"  to  make  the  contract  for  the 
conveyance  of  the  goods  o\er  the  entire 
route,  yet  it  was  held  that  by  the  acts  of 
the  company  he  had  such  an  implied  au- 
thority, which  estopped  them  from  deny- 
ing that  he  was  "acting  within  the  scope 
of  the  authority  conferred  upon  him  by 
the  company,"  and  they  were  held  liable 
for  the  carriage  of  the  goods  over  the  en- 
tire route.  The  contract  (or  special  con- 
tract, if  you  vjill)  of  the  company  them- 
selves "through  their  ageut  may  then  quite 
as  well  be  inferred  or  implied  from  the 
surrounding  facts,  as  the  aiithority  of 
the  agent,  and  in  either  case  all  of  the 
facts  which  tend  to  show  what  the  con- 
tract or  authority  is  in  the  particular  case 
should  be  considered.  This,  in  effect,  is 
simply  all  that  is  held  in  the  Engli-sh 
cases  ;  and,  as  above  intimated,  is  a  prin- 
ciple which  is  as  much  acted  upon  on  the 
subject  we  are  considering  by  tiie  Ameri- 
can cases  as  by  the  English. 
60  Me.  477,  478. 


138  COMMENTARIES   ON   SALES.  [BOOK   III, 

the  receipt  given  limiting  the  defendants'  liability  to  the  end  of 
their  own  route,  and  the  delivery  of  the  money  to  a  "  connecting 
express  company."  The  "  special  contract "  last  referred  to  was 
an  express  contract  of  the  clearest  possible  kind.  If,  by  the  use 
of  the  term  "special  contract"  in  the  preceding  sentence,  is 
intended  also  to  mean  express  contract,  or  anything  more  than  is 
covered  simply  l)y  the  word  "  contract,"  without  that  constantly 
reiterated  word  "  special ; "  then,  it  is  scarcely  necessary  to  say, 
such  a  position  is  entirely  incorrect  and  unsupported  either  in 
England  or  America.  So,  again,  if  it  be  imagined  that  there  is 
any  case  in  England  which  decides,  contra  to  the  principle  of  this 
Maine  case,  that  the  mere  receipt  by  carriers  of  goods  marked 
to  an  ultimate  destination,  with  an  express  contract  that  the 
receivers  shall  be  liable  only  over  their  own  immediate  route,  and 
not  over  connecting  roads  beyond  it,  makes  them  liable  over  the 
whole  route;  then  the  doctrine  of  the  English  cases  is  greatly 
misunderstood.  The  case  of  Bristol  &  Exeter  Ry.  Co.  v.  Collins  ^ 
comes  nearest  to  such  an  unsound  doctrine,  but  does  so,  as  we 
have  shown,  not  only  against  the  unanimous  decision  of  the  Court 
of  Exchequer  Chamber,  and  against  the  answers  of  four  judges  out 
of  six,  but  by  what  we  think  was  really  a  perversion  of  the  express 
written  contract  with  which  they  had  to  deal ;  and  not  as  purport- 
ing to  hold  any  doctrine  contra  to  that  of  the  Maine  case.  But, 
assuming  that  the  construction  by  the  House  of  Lords  of  that  con- 
tract was  correct,  then  the  case  would  simply  hold  that  the  con- 
tracting company  had  not  limited  the  express  liability  which  they 
had  assumed  for  the  carriage  of  the  goods  over  the  entire  route.^ 

1  7  H.  L.  Cas.  194.  present,  expressly  concurring  in  it,  — and 

2  In  Inhabitants  of  Plantation  No.  4  with  reference  to  which  they  say  (at  p. 
V.  Hall,  61  Me.  517,  the  Maine  court  519):  "  Such,  unquestionably  is  the  law," 
make  a  still  plainer  confounding  of  what  be  an  authoritative  and  authorized  exposi- 
they  call  "a  special  contract"  with  an  ex-  tion  of  what  they  are  continually  calling 
press  contract,  and,  therefore,  make  their  "  The  Amei-ican  rule  "  in  the  matter,  then, 
confusion  of  terms  and  misstatement  of  it  is  only  necessary  to  say  that  "The 
law  still  more  apparent  than  before.  Re-  American  rule  "  is  not  only  very  bad  law, 
ferring  to  the  Massachusetts  case  we  have  but  that  it  is  very  badly  supported  by 
fully  considered,  supra,  p.  112,  they  say  :  American  decisions  themselves.  We  have 
"  In  Burroughs  I'.  Norwich,  &c.  R.  R.  Co.,  not  yet  found  one  case  among  those  we 
100  JMass.  26,  it  was  held  that  a  corpora-  have  examined,  —  notwithstanding  the 
tion  established  to  transport  goods  for  hire  mystical,  uncertain  manner  in  which  so 
between  certain  iilaces,  and  receiving  goods  many  of  them  use  that  term,  "special 
directed  to  a  more  distant  place,  is  not  re-  contract,"  — the  ratio  decidendi  of  which 
sponsible  beyond  the  end  of  its  own  route,  justifies  the  statement  of  the  Maine  Su- 
as  a  common  carrier,  but  only  as  a  for-  preme  Court  that  that  which  they  deduce 
warder,  unless  it  make  an  express  agree-  from  the  Massachusetts  case  which  they 
ment  extending  its  liabilities."  If  this  cite,  is  "  unquestionably  the  law  !  "  And 
statement  of  the  law,  in  this  comparatively  we  are  inclined  to  doubt,  if,  in  the  further 
late  case,  Iji/  the  Supreme  Court  of  Maine,  examination  we  are  to  make,  we  find  one 
as  made  by  Appleton,  C.  J.,  in  delivering  solitary  case,  the  reasoning  and  conclusion 
the  unanimous  judgment  of  the  court, —  in  which  will  warrant  such  a  conclusion, 
the  other  members  of  it,  five  judges  being  The  Maine  case  itself,  like  the  previous 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS. 


139 


We  take  up  next  the  Connecticut  cases.     Hood  v.  The  New- 
York   &   N.  H.  R.  R.  Co.^  is  the  first  of  these.     This  was  the 


one  from  that  State,  simply  holds,  where 
an  express  company  "  expressly  "  excluded 
themselves  from  liability  as  carriers  beyond 
their  own  route,  that  they  were  not  liable 
outside  of  the  clearly  expressed  terms  of 
the  written  contract. 

It  seems  almost  superfluous  to  point  out, 
after  all  we  have  written,  that  the  great 
mass  of  the  American  cases  correctly  hold, 
in  perfect  accord  with  the  well-decided 
English  cases,  that  a  carrier  ma}'  contract, 
eitlicr  expressly  or  impliedly,  for  the  con- 
veyance of  goods  beyond  his  own  immedi- 
ate route,  so  as  to  make  himself  personally 
liable  for  the  safe  conve3'ance  of  the  goods 
over  the  entire  route  with  reference  to 
which  he  expressly  or  impliedly  contracts. 

There  are  many  cases  in  which  the  term 
"  special  contract "  is  used  in  a  sense  which 
almost  implies  that  it  is  used  as  the  equiv- 
alent of  "express  contract  ;"  but  in  no 
other  case  have  we  found  this  radical  error 
so  glaringly  appear  as  in  the  Maine  case, 
where  the  term  "  express,"  being  substi- 
tuted for  the  "  positive  "  of  the  iVlassacliu- 
setts  case,  shows  the  mistake  more  clearly. 
But,  to  show  the  unsoundness  of  what  the 
Supreme  Court  of  Maine  unanimously  de- 
clare "  unquestionably  is  the  law,"  it  is 
not  necessary  to  go  beyond  their  own  de- 
cisions. In  the  subsequent  case  of  Grindle 
V.  Eastern  Expre.ss  Co.,  67  Me.  317,  320, 
they,  with  the  same  unanimity  as  before, 
say  :  "  The  defendants  do  not  deny  their 
receipt  of  the  money  in  the  capacity  men- 
tioned. Being  such  carriers,  and  their 
general  obligation  depending  upon  their 
public  profession,  they  were  bound,  in  the 
absence  of  any  special  agreement,  to  receive 
the  money  and  carry  and  deliver  it,  within 
a  reasonable  time,  at  whatever  place  di- 
rected within  the  route  which  they  hold 
out  to  the  ])ublic  as  theirs,  and  no  further. 
There,  their  common-law  liability  ceases. 
They  might  contract  to  carry  further  to 
any  point  beyond  their  regular  line  ;  or 
might  simply  undertake  to  deliver  to  a 
connecting  carrier  ;  in  which  latter  event 
their  liability  would  cease  with  a  safe  car- 
riage and  prompt  delivery  ;  for  they  would 
then  have  done  all  the  law  and  all  their 
contract  required,  llie  proof  of  a  contract 
beyond  tlieir  route  should  be  clear.     But 

rr   MAY  BE  EXPRKS.S  OR   BY   IMPLICATION  ; 

by  direct  or  circumstantial  evidence  ;  by 
v)ords,  co7iducf,  or  usage."  This  judgment 
of  the  Supreme  Court  of  Maine  was  deliv- 
ered by  Virgin,  J.,  and  was  unanimously 
concurred  in  by  the  rest  of  the  Maine  Su- 
])reme  Court  judges,  Appleton,  C.  J.,  who 
delivered  the  unanimous  judgment  of  the 


same  court  in  Inhabitants  of  Plantation 
No.  4,  V.  Hall,  61  Me.  517,  declaring  it  to 
be  unc^uestionable  law  that  such  a  contract 
could  only  be  by  "express  agreement," 
being  one  of  them. 

The  actual  holding  in  this  Maine  case, 
as  in  the  preceding  cases  we  have  examined 
from  that  State,  is  simply  to  the  effect 
that  where  a  carrier  expressly  contracts  to 
carry  goods  to  a  designated  ])lace,  and  de- 
livers them  there,  he  has  only  the  liability 
which  is  involved  in  his  contract.  The 
court  make  the  extra-judicial  observation 
that,  "  Receiving  goods  marked  or  directed 
to  some  point  beyond  their  regular  route 
is  not  sufficient  evidence  of  an  im])lied  con- 
tract to  carry  them  to  that  place  ;  "  for 
which  they  cite  Pendergast  v.  Adams  Ex- 
press Co.,  101  Mass.  120,  stated  by  us, 
supra ;  but,  as  we  have  there  shown,  in 
that  case  there  was  an  express  contract 
that  the  liability  of  the  receiving  company 
should  not  extend  beyond  their  own  im- 
mediate route,  and,  therefore,  the  question 
as  to  what  was  involved  in  or  imjilied  by 
the  receipt  for  carriage  of  goods  specifically 
marked  for  the  place  for  which  they  were 
consigned,  was  really  not  in  the  case  at 
all.  If  by  '•sufficient"  evidence,  the 
!RIaine  Court  meant  conclusive  evidence, 
then  they  were  right  ;  and  that  has  not  to 
be  added  to  the  other  egregious  error  they 
made  of  unanimously  declaring  in  one 
case,  as  we  have  shown  that  they  did,  that 
such  a  contract  could  only  be  made  by 
"express  agreement;"  and  then,  in  an- 
other case  declaring,  again  unanimously, 
that  that  which  they  had  pronounced  as 
"  unquestionably  "  the  law,  that  such  con- 
tract could  only  be  made  by  "express 
agreement,"  was  not  nn(iuestionably  the 
law,  but  that  such  contract  "may  be  ex- 
press or  by  implication,"  and  [it  may  be 
proved,  they  mean]  "  by  direct  or  circum- 
stantial evidence  ;  by  words,  conduct,  or 
usage."  This  is  exactly  the  holding  of 
the  English  cas'es,  and  while  they  do  not 
hold  that  the  goods  being  received  for  car- 
riage so  marked,  is  sufficient  evidence 
(treating  sujfficient  as  a  synonym  for  ccmclu- 
sive)  of  an  inijilied  contract  to  carry  the 
goods  to  their  marked  destination  under 
all  circumstances  ;  they  do  hold,  and  very 
properly  hold,  that  that  is  one  fact,  from 
which,  under  the  surrounding  circum- 
stances, a  jury  may  be  wariaiited  in  infer- 
ring such  a  contract.  And  so  far,  in  our 
examination  of  the  American  cases  which 
are  n.sually  cited  as  holding  a  doctrine  op- 
posed to  this,  we  have  found  none  of  these 
cases,  including  the  Maine  Supreme  Court 


1  22  Conn.  1. 


140  COMMENTARIES   ON   SALES.  [BOOK   III. 

case  of  the  carriage  of  a  passenger,  under  a  through  ticket,  from 
New  Haven  to  Collinsville.  The  defendants'  raih-oad  extended  to 
Farminti-ton,  where  it  connected  with  a  stage  to  Collinsville.  The 
ticket  that  was  sold  in  this  case  showed  an  express  contract  to 
carry  the  plaintiff  "  from  New  Haven  to  Collinsville,  by  railroad 
and  stage,"  for  which  one  through  rate  was  paid  by  the  plaintiff  to 
the  defendants.  The  plaintiff,  having  been  injured  on  the  con- 
necting stage  route,  sued  the  defendants,  and  on  the  trial,  the  en- 
tirety of  this  contract  does  not  seem  to  have  been  even  questioned  ; 
but  it  was  claimed  that  the  company,  under  their  charter,  had  no 
power  to  make  such  a  contract.  The  jury  found  for  the  plaintiff. 
On  motion  for  a  new  trial,  the  court  held  that  "  there  was  some 
evidence  of  a  promise ;  enough,  perhaps,  to  make  a  slight  prima 
facie  case."  The  court,  while  saying  that  the  "  ticket  expresses 
no  contract,"  add,  "  Taken  in  connection  with  the  payment  of  the 
money  for  the  entire  distance,  it  would  furnish  some  evidence  of 
a  promise  to  transport  the  holder  of  the  ticket  over  the  entire 
line."  As  there  was  no  limitation  whatever  on  their  "  promise," 
and  as  it  was  on  a  sufficient  consideration,  the  desiderata  for  a 
contract  seem  to  be  all  there  ;  even  though  the  contracting  defend- 
ants had  no  "  connection  with  [oivnership  of,  they  evidently  mean] 
the  stages."  The  English  cases  seem  to  be  approved,  thus  :  "  We 
are  aware,  that  in  the  cases  cited  from  the  English  books,  it  seems 
to  be  held,  that  if  a  railroad  company  receives,  at  its  depot,  goods 
marked  to  be  forwarded  beyond  its  own  road,  and  even  beyond 
any  other  railroad,  this  is  prima  facie  evidence  of  a  contract  to 
carry  the  goods  to  the  place  of  destination.  We  will  not  say,  that 
in  these  English  cases,  since  there  was  no  evidence  on  the  part  of 
the  defendants  to  disprove  the  prima  facie  case,  the  defendants 
were  not  rightly  subjected  in  damages,  for  a  loss  beyond  their 
road."  They  also,  in  the  same  way,  distinguish  Weed  v.  Sara- 
toga, &c.  R.  R.  Co.,^  on  the  ground,  as  stated  by  Rolfe,  B.,  in 
Muschamp  v.  Lancaster  Ry.  Co.,^  that  the  evidence  there,  too, 
did  make  out  a  prima  facie  case,  and  suggest,  as  a  possible 
answer  to  such  a  prima  facie  case,  the  evidence  of  established 
usage.  But,  by  a  mere  majority  of  the  judges  (three  to  two), 
reversing  the  decision  of  the  court  below,  they  held,  on  the  ground 
that  "  passengers  take  care  of  themselves,"  that  even  though  the 
doctrine  of  the  English  cases  was  right  as  to  freight,  it  did  not 
follow  that  it  would  also  apply  to  passengers.  Though  why  the 
express  contract  in  this  latter  case  would  not  apply  to  passen- 

cases  themselves,  which  establish  a  differ-  ^  19  W^'end.  534. 

ent  doctrine,  or  which  at  all  successfully  ^  8  M.  &  W.  421. 

controvert  the  sound  holding  in  the  Eng- 
lish cases  on  the  subject. 


I 


PART   II.]       CONTRACTS   FOR   THROUGH    CARRIAGE   OF   GOODS,  141 

gers  for  an  injury  caused  to  them  by  the  default  of  the  defendants, 
under  their  contract,  as  well  as  the  implied  contract  would  apply 
to  the  freight  in  the  English  cases,  is  not  clear.  A  new  trial  was, 
however,  ordered,  when  the  jury  again  found  for  the  plaintiffs ;  it 
being  shown,  in  addition  to  the  previous  evidence,  that,  in  effect, 
their  general  usage  was  to  do  that  which  in  this  case  they  had 
specifically  done.  On  a  motion  for  another  new  trial,  the  court 
entirely  abandoned  their  previous  position,  but  held,  again  by  but 
the  three  judges  as  in  the  previous  case,  that  the  defendants  had 
no  power  to  make  such  a  contract,  and  were  not  estopped  from  so 
showing.  A  third  trial  was  ordered,  but  there  seems  to  be  no 
further  record  of  the  case,  except  as  is  contained  in  23  Connecti- 
cut, 609,  where  a  bill  filed  on  the  ground  that  the  defendants  were 
so  estopped  in  equity,  if  not  in  law,  was  dismissed ;  which  prob- 
ably put  an  end  to  the  case.^ 

In  the  next  Connecticut  case,^  the  same  three  judges  ^  adhered 
to  their  previous  decision  so  emphatically  condemned  in  Perkins 
V.  Portland,  &c.  R.  R.  Co.,*  stated  in  our  note.  On  that  ground 
alone  there  can  scarcely  be  a  question,  as  intimated  in  the  Maine 
case,  that  they  stand  alone ;  opposed  as  they  are  by  the  uniform 
law  in  the  other  States"  of  the  Union  as  well  as  in  England. 

This  is  really  the  first  decision  we  have  found,  in  which,  by 
even  a  majority  of  the  court,  the,  to  our  mind,  unquestion- 
ably sound  decisions  in  England  on  the  subject  (independent  alto- 
■gether  of  the  question  as  to  the  power  of  a  railway  company  to 
contract  for  carriage  beyond  its  own  line)  are  actually  departed 
from.  The  decision  of  the  case  by  the  majority  of  the  court 
mainly  rests  on  their  second  decision  in  Hood  v.  Xew  York  & 

^  Commenting  on  the  ultimate  ground  of  those  which  are  specifically  enumerated 
upon  which  the  case  was  decided,  it  is  said  may  be  presumed  to  be  conferred  by  im- 
of  it  in  one  of  the  Maine  cases  we  have  plication.  The  business  of  common  car- 
examined  (Perkins  v.  Portland,  &c.  R.  R.  riers  between  different  places  is  intimately 
Co.,  47  Me.  at  p.  590)  :  "  In  the  case  of  interwoven,  branching  off  into  innumei'a- 
Hood  V.  New  York  &  X.  H.  R.  R.  Co.,  22  ble  channels.  And  it  is  often  of  great 
Conn.  502,  it  was  held  that  a  contract  to  public  convenience,  if  not  of  absolute  ne- 
carry  a  passenger  from  New  Haven  to  cessity,  that  several  companies  should 
Farmington  on  their  railroad,  and  thence  comVnne  their  operations,  and  thus  trans- 
to  Collinsville  by  stage,  was  not  binding  port  passengers  and  merchandise  b}'  a 
on  the  company,  on  the  ground  that  the  mutual  arrangement,  over  all  their  lines 
company  had  no  authorit}',  under  their  upon  one  contract,  for  one  price.  In  such 
charter,  to  make  a  contract  to  carry  a  per-  cases,  each  is  held  liable  for  the  whole 
son  beyond  their  own  line.  We  are  not  distance.  Fairchild  v.  Slocum,  19  Wend, 
aware  that  the  doctrine  has  been  carried  329  ;  F.  &,  W.  Railroad  Co.  v.  Hauna,  6 
to  that  extent  in  any  other  State.     Upon  Gray,  539." 

a  caniful  survey  of  all  the  authorities,  we  2  Elmore  v.  The  Naugatuck  R.  R.  Co., 

are  satisfied  that  a  railway  company  may  23  Conn.  457. 

be  bound  by  a  special  contract,  to  trans-  8  Waite,  C.  J.,  and  Hinman,  J.,  holding 

port  persons  or  jjroperty  beyond  the  line  the  opposite  and  incomparably  the  sounder 

of  their  own  rond.     In  granting  the  char-  opinion, 
ter,  all  incidental  powers  whicli  are  neces-  *  47  Me.  590. 

sary  to  the  proper  and  profitable  exercise 


142 


COMMENTARIES   ON   SALES. 


[book   III. 


N.  H.  R.  R.  Co.,^  as  stated  by  us  above  ;  but  now  they  abandon 
the  distinction  between  passengers  and  freight  made  by  them  in 
their  first  decision  in  that  case;^  and  not  only  so,  but  abandon 
as  well  their  admission  "  that  if  a  railroad  company  receives,  at 
its  depot,  goods  marked  to  be  forwarded  beyond  its  own  road,  and 
even  beyond  any  other  railroad,  this  \s  prima  facie  evidence  of  a 
contract  to  carry  the  goods  to  the  place  of  destination ; "  and,  in 
effect,  that  where  "there  was  no  evidence  on  tlffe  part  of  the 
defendants  to  disprove  the  prima  facie  case"  (as  in  Muschamp  v. 
Lancaster  Ry.  Co.,  8  M.  &  W.  421),  the  defendants  were  rightly 
subjected  in  damages,  for  a  loss  beyond  their  road.^ 

In  Elmore  v.  the  Naugatuck  R.  R.  Co.,*  the  defendants'  own 
immediate  road  extended  only  to  Bridgeport,  where,  among  other 
connections,  they  had  connection  by  railway  and  steamboat  to 
New  York.  They  advertised  that  freight  would  be  way-billed  from 
each  station  for  New  York,  New  Haven,  and  Bridgeport ;  adding, 
"  The  facilities  for  transporting  freight  having  been  greatly  in- 
creased, shippers  may  rest  assured  that  their  goods  will  be  taken 
through  to  their  destination  with  despatch."  Leather  was  deliv- 
ered by  the  plaintiff  to  the  defendants  marked  to  consignees  at 
New  York,  and  for  which  a  receipt  was  given,  acknowledging 
that  it  was  "  Received  for  transportation  in  good  order,  consigned 
to  C.  &  M.,  New  York."  The  goods  were  lost  after  they  had  been 
transshipped  by  the  defendants  at  Bridgeport  for  New  York.  The 
court,  on  the  trial,  among  other  things,  charged  the  jury  that  the 
liability  of  the  defendants  rested  upon  what  they  should  find  to 
have  been  the  real  contract  between  the  parties  in  respect  to  the 
transportation  of  the  plaintiff's  goods.  That  independently  of 
any  special  contract,  the  defendants  were  not  bound  to  carry  the 
goods  beyond  their  own  road,  whether  they  were  marked  or  con- 
signed to  a  place  beyond  said  limits  or  not.  That  the  question 
for  them  to  determine  was,  therefore,  whether  in  fact,  and  in  law, 
the  defendants  contracted  to  carry  the  goods  to  New  York,  or 
whether  they  only  contracted  to  carry  them  to  Bridgeport,  and 
from  thence  to  forward  them  by  steamers,  or  some  other  regular 
conveyance.  That,  in  case  they  contracted  to  carry  them  to  New 
York,  they  were  liable,  otherwise  not,  as  it  appeared  the  goods 
were  destroyed  after  the  safe  arrival  of  them  at  Bridgeport.  And 
then,  in  accordance  with  what  the  three  judges  who  constituted 
the  majority  of  the  court  in  the  previous  case,  had  themselves  in 
effect  admitted,"  that  the  delivering  of  the  goods  to  the  defendants 
for  transportation,  consigned  to  New  York,  and  taking  the  re- 


>  22  Conn.  502. 
"  Ibid,  at  p.  15. 


3  Ibid.  p.  14. 
*  23  Coun.  457. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.     ,143 

ceipts  from  the  defendants,  without  anything  farther  between  the 
parties,  was  jn'imd  facie  a  contract  to  carry  the  goods  to  the 
place  of  destination  according  to  the  marks  and  directions  upon 
them."  The  jury  found  for  the  plaintiff.  Tlie  majority  of  the 
court  set  aside  the  verdict,  and  ordered  a  new  trial.  In  doing  so, 
in  addition  to  holding  that  the  defendants'  power  was  limited 
■within  the  express  terms  of  their  charter,  they  relied  largely  on 
the  Massachusetts  decision  in  Nutting  v.  Conn.  R.  R.  Co.,^  but 
which  case,  as  well  as  another  of  the  cases  relied  on,  Van  Sant- 
voord  V.  St.  John,2  is  plainly  distinguishable,  as  we  have  shown, 
from  the  English  cases.  But  they  went  beyond  the  cases  they 
cited,  and  held  that  the  court  below  erred  in  instructing  the  jury 
that  the  delivery  of  the  goods  to  the  defendants  for  transporta- 
tion, and  their  giving  a  receipt  to  that  effect,  was  primd  facie 
evidence  of  an  undertaking  to  carry  the  goods  to  New  York ; 
that  being  the  place  of  their  ultimate  destination.  And  they  did 
this  too,  although  in  the  previous  case  of  Hood  v.  New  York  & 
N.  H.  R.  R.  Co.^  (the  same  judge,  Ellsworth,  J.,  delivering  the 
judgment  in  both  cases),  they,  in  effect,  declared  that  such  evi- 
dence "  is  prima  facie  evidence  to  carry  the  goods  to  the  place  of 
destination,"  and  that,  as  there  was  no  evidence  on  the  part  of 
the  defendants  to  disprove  the  primd  facie  case,  the  defendants 
were  rightly  subjected  in  damages,  for  a  loss  beyond  their  road. 
And,  on  page  15  of  the  same  case,  we  find  them  declaring  further, 
in  express  opposition  to  their  holding  in  the  later  case,  that  in 
Weed  V.  Saratoga,  <fec.  R.  R.  Co.,*  as  in  Muschamp  v.  Lancaster  Ry. 
Co.,^  "  It  is  a  prima  facie  case  merely  I  "  And  yet,  in  the  later 
case  they  pronounce  it  error,  in  a  judge  (Hinraan,  J.),  who,  con- 
sistently differing  with  their  conclusions  in  both  cases,  yet  charged 
the  jury  to  the  same  effect,  and  in  virtually  the  same  language,  as 
they  themselves  had  held  in  the  previous  case.  There  is  nothing 
either  in  their  reasoning;  in  their  admittedly  wrong  decision  in 
one  of  the  two  points  involved  in  the  case,  or  in  their  contradic- 
tions and  inconsistencies  in  reference  to  the  other,  to  entitle  their 
decision  to  any  special  weight.  On  the  other  hand,  the  dissenting 
judgment  of  Chief  Justice  Waite,  in  which  he  agrees  with  Hin- 
mau,  J.,  with  which  we  entirely  concur,  is,  to  our  mind,  con- 
clusive in  its  reasoning,  and  presents  the  only  correct  appreciation 
of  the  effect  of  the  English  decisions  we  have  yet  found  in  our 
examination  of  the  cases  decided  in  this  country.*^ 

*  1  Oray,  502.  6  w'e  cannot  do  justice  to  Chief  Justice 
^  6  Hill,  157.  Waite's  admirable  judpinont  by  any  syn- 
8  22  Conn.  14.  opsis  of  it,  or  extract  from  it,  and  as  it  is 

*  19  Wend.  534.  of  the  greatest  value  in  showing  what  the 
^  8  M.  &  W.  421.  law  in  the  case  really  is,  we  set  it  out  in 


144 


COMMENTARIES   ON   SALES. 


[book    III. 


The  Naugatuck  R.  R.  Co.  v.  The  Waterbury  Button  Co.,i  the 
next  Connecticut  case  on  the  subject,  and  which  follows  Elmore 


full  ill  this  note.  Waite,  C.  J.:  "The 
defendants,  in  this  case,  gave  public  no- 
tice in  the  newspapers  '  to  freight  ship- 
pers,' that  freight  would  be  '  way-billed 
from  each  station '  on  their  road,  '  for 
New  York,  New  Haven,  and  Bridgeport.' 
After  this  notice  had  thus  been  publicly 
given,  the  plaintiff  delivered  to  them,  at 
their  station  in  Wolcottville,  a  quantity  of 
leather  to  be  transported  to  New  York,  for 
which  they  gave  him  two  receipts.  One 
was  in  these  words  :  '  Received,  for  trans- 
portation in  good  order,  from  J.  D.  El- 
more, five  bales  of  leather,  1,297  lbs.,  con- 
signed to  Cook  &  Mann,  N.  Y.'  To  this 
receipt  their  company  name  was  aflBxedby 
their  agent.  The  otlier  receipt  was  of  the 
same  tenor,  differing  only  in  the  quantity 
of  leather,  and  in  the  names  of  the  con- 
signees. The  goods  were  transported  to 
Bridgeport,  placed  on  board  a  steamer, 
and  afterwards  destroyed  by  fire.  The 
action  was  brought  to  recover  for  the  loss. 
Upon  this  evidence,  the  judge,  upon  the 
circuit,  instructed  the  jury  that  the  deliv- 
ery of  the  goods  to  the  defendants,  and 
taking  their  receipts  for  the  same,  without 
anything  further  between  the  parties,  was 
prima  facie  a  contract  to  carry  the  goods 
to  the  place  of  destination,  according  to 
the  marks  and  directions  upon  them. 
The  jury  having  returned  their  verdict  in 
favor  of  the  plaintiff,  it  is  now  said  that 
the  instruction  of  the  court,  and  the  ver- 
dict of  the  jury,  are  both  wrong.  But  to 
this  assertion  I  cannot  yield  my  assent. 
The  receipts  given  by  the  defendants  are 
undoubtedly  evidence  of  a  contract  of  some 
sort,  and  were  so  intended  by  the  defend- 
ants when  given.  And  if  they  do  not  im- 
port a  contract  to  transport  the  goods  to 
New  York,  what  contract  do  they  im[)ort  ? 
Not  to  carry  to  Bridgeport  any  more  than 
to  Waterbury,  or  any  other  place  on  their 
route.  But,  say  the  defendants.  New 
York  is  beyond  the  termination  of  our 
road,  and  we  could  make  no  contract  to 
carry  beyond  it.  Why  then  did  you  pub- 
lish to  the  world  that  you  would  '  bill ' 
goods  to  New  York  if  you  did  not  intend 
to  carry  them  there  ?  And  when  the 
goods  were  delivered  to  yon,  consigned  to 
merchants  in  New  York,  in  compliance 
with  your  call  upon  freight  shippers,  why 
did  you  give  your  receipts  for  the  goods, 
to  be  transported  in  good  order,  without 
specifying  the  contract  you  intended  to 
make  ?  Had  the  goods  been  consigned  to 
Iiersons  in  Waterbury,  in  Seymour,  in 
Derby,  or  any  other  place  oa  the  line  of 


the  defendants'  road,  could  there  be  a 
doubt  but  that  receipts,  like  the  present, 
would  import  a  contract  to  deliver  at  the 
place  designated  ?  A  delivery  in  such 
case  at  any  other  place  would  clearly  be  a 
violation  of  the  contract.  A  delivery  at 
Bridgejiort  would  render  the  defendants  as 
liable  as  a  delivery  in  New  York.  The 
case  of  Nutting  against  The  Connecticut 
River  R.  R.  Co.,  is  relied  ujion  by  the  de- 
fendants as  supporting  their  claim.  1 
Gray's  R.  502.  But  there  is  a  material 
distinction  between  that  case  and  the  pres- 
ent. There  a  practice  had  existed  for  the 
defendants  to  carry  goods  consigned  to 
New  York,  only  as  far  as  Springfield,  the 
termination  of  their  road,  and  they  were 
paid  for  carrying  the  goods  only  to  that 
"place.  In  the  present  case,  had  there  been 
a  practice  on  the  part  of  the  defendants  to 
transport  goods  no  further  than  Bridge- 
port, and  had  the  plaintiff  paid  them  the 
freight  to  that  place,  such  facts  would  have 
rebutted  the  prima  facie  evidence  furnished 
by  the  receipts  alone,  and  have  shown 
what  the  real  understanding  of  the  parties 
was.  In  the  language  of  the  charge,  there 
would  have  been  '  something  more  between 
the  parties.'  The  principle  laid  down  by 
the  judge  on  the  circuit,  is  in  precise  con- 
formity with  the  English  decisions,  and  is 
fully  sustained  by  them.  Such  evidence 
is  not  considered  as  conclusive  evidence  of 
a  contract  to  carry  the  goods  to  their  place 
of  destination,  but  merely  as  prima  facie 
eviilence  of  such  an  undertaking,  liable  to 
be  controlled  by  the  otlier  evidence  in  the 
case. 

"But  the  main  question  involved  is, 
whether  a  railroad  corporation  has  power 
to  make  a  valid  contract  Ibr  the  transpor- 
tation of  goods,  to  any  place  be)'ond  the 
termination  of  their  road.  A  majority  of 
this  court  are  of  opinion  that  such  a  cor- 
poration has  no  such  power,  and  u]ion  that 
ground  they  hold  the  verdict  to  be  wrong. 
That  question,  in  my  juilgnient,  is  one  of 
very  great  importance  in  this  conntiy, 
covered  as  it  is,  with  a  vast  net-work  of 
railroads,  constantly  increasing  in  num- 
ber, and  moving  annua lly  an  immense 
amount  of  freight  to  and  from  almost  every 
part  of  the  Union.  If  the  present  railroad 
corporations  do  not  possess  the  power  to 
make  such  a  contract,  as  incidental  to  their 
general  powers,  in  my  opinion,  the  busi- 
ness wants  of  the  community,  and  espe- 
cially of  mercantile  men,  must  soon  demand 
legislative  interference  and  a  grant  of  the 
requisite  authority.     Indeed,  I  do  not  see 


1  24  Conn.  468. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS. 


A5 


V.  The  Naugatuck  R.  R.  Co.,^  is  also  virtually  decided  by  a  di- 
vided court,  two  of  the  judges  only  delivering  the  judgment ;  Hin- 


how  the  great  business  operations  of  the 
country  can  safely  be  carried  on  without 
it.  The  question  is  not  wliether  a  railroad 
company  can  be  laid  under  any  obligation 
to  transport  goods  beyond  the  line  of  their 
road,  unless  by  their  voluntary  consent  ; 
but  whether  they  can  unite  with  other 
railroad  companies  having  a  continued  line 
between  two  places,  by  which  they  can 
contract  for  the  transjiortation  of  goods 
between  those  places.  No  company  would 
naturally  enter  into  any  such  arrangement 
unless  for  the  promotion  of  their  interests 
and  increasing  the  legitimate  business 
upon  their  road.  And  it  is  easy  to  con- 
ceive that  such  an  arrangement  in  many 
cases  might  be  made  res]iecting  the  di- 
vision of  the  freight  money,  and  the 
speedy  and  safe  transportation  of  goods, 
as  would  be  highly  beneficial  to  all  con- 
cerned, and  materially  increase  the  busi- 
ness on  their  route.  A  merchant  residing 
in  Cleveland,  Toledo,  or  Chicago,  pur- 
chases goods  in  the  city  of  New  York, 
which  he  wishes  to  send  to  his  place  of 
business.  He  enters  into  a  contract  with 
a  railroad  company  for  their  transportation 
not  to  any  given  point  on  the  route,  but 
for  the  whole  distance.  He  delivers  the 
goods  to  the  company,  and  they  are  taken 
and  locked  up  in  freight  cars.  He  does 
not  accompany  them,  and  often  sees  and 
hears  nothing  more  of  them  until  they  are 
delivered  to  him  at  their  place  of  destin- 
ation. The  cars  in  which  they  are  placed 
are  often  run  over  roads  belonging  to  dif- 
ferent companies,  to  save  the  trouble  and 
expense  of  a  change  of  cars.  If  the  goods 
are  lost  or  damaged  on  their  route,  he  or- 
dinarily has  no  means  of  determining 
where,  or  in  whose  custody  the  injury  ac- 
crued. The  trouble  and  expense  of  ascer- 
taining that  fact,  in  many  cases,  would 
amount  to  more  than  the  whole  damage. 
As  a  prudent,  cautious  man,  he  would  be 
unwilling  to  trust  his  goods  to  the  cus- 
tody of  others,  unless  he  could  find  some 
7)erson  or  company  that  would  be  respon- 
sible for  their  safe  delivery. 

' '  But  we  are  not  left  to  mere  specula- 
tion upon  this  subject.  The  question  has 
repeatedly  bdin  before  the  higher  P^nglish 
courts,  and  they  have  uniformly  holden 
that  railway  coi-porations  have  power  to 
enter  into  contracts  for  the  transjjortation 
of  goods  beyond  the  termination  of  their 
roads,  and  that  the  recei{)t  of  them, 
marked  for  a  particular  place,  is,  prima 
fade,  a  contract  to  carry  to  that  place. 
[Citing  Muschamp  v.  The  Lancaster  Ry. 


Co.,  8  M.  &  W.  421  ;  Watson  v.  The 
Ambergate,  &c.  Ry.  Co.,  15  Jur.  448,  and 
other  English  cases.] 

"In  the  first  case  cited,  a  parcel  was 
delivered  to  the  defendants,  directed  to  a 
person  at  a  place  in  Derbyshire,  beyond 
Preston,  the  termination  of  the  defendants' 
road.  The  person  who  delivered  it  of- 
fered to  pay  for  the  transportation,  but 
the  defendants'  book-keeper  said  it  had 
better  be  paid  by  the  person  to  whom  it 
was  directed.  The  parcel  was  carried  to 
Preston,  and  there  delivered  to  the  next 
company  on  the  route,  and  was  afterwards 
lost.  It  was  holden  that  the  defendants 
were  liable  for  the  loss,  and  that  the  re- 
ceipt by  them,  under  the  circumstances, 
was  "prima  facie  evidence  of  a  contract  to 
carry  it  to  the  place  of  its  destination. 
Lord  Abinger,  in  the  course  of  his  remarks, 
said  :  '  The  taking  charge  of  the  parcel 
is  not  put  as  conclusive  [this  word  is  acci- 
dentally omitted  in  the  quotation,  but  is 
in  the  original,  and  is  in  italics  there. 
AuTH.]  evidence  of  the  contract,  sued  on 
by  the  plaintiff.  It  is  only  prima  facie 
evidence  of  it  ;  and  it  is  useful  and  reason- 
able for  the  benefit  of  the  public  that  it 
should  be  so  considered.  It  is  better  for 
those  who  undertake  the  carriage  of  par- 
cels, for  their  mutual  benefit,  that  they 
should  arrange  matters  of  this  kind,  inter 
se,  and  should  be  taken  each  to  have  made 
the  others  their  agents  to  carry  forward.' 
And  Rolfe,  Baron,  said  :  '  The  construc- 
tion we  are  putting  on  the  agreement  is 
not  only  consistent  with  law,  but  it  is  the 
only  one  consistent  with  common-sense, 
and  the  convenience  of  mankind  .  .  .  Any 
other  construction  would  open  the  doors 
to  incalculable  inconveniences.  All  in- 
convenience is  one  way,  and  there  is  no 
authority  the  other  way.'  The  principles 
recognized  in  that  case  were  fully  sanc- 
tioned in  the  next  case  cited.  Earle,  J., 
referring  to  the  case,  said  :  '  I  think  it 
was  there  properly  decided,  that  where 
goods  are  received  at  one  terminus  for  con- 
veyance to  another,  the  company  are  an- 
swerable for  all  the  intermediate  termini, 
and  the  receipt  of  such  goods  is  prima 
facie  evidence  of  such  liabilit}^  In  the 
succeeding  case,  the  defendants'  counsel 
admitted  that  the  princnples  recognized  in 
those  cases  were  so  well  settled  that  their 
correctness  could  not  be  impugned.  They 
fully  sustain  both  the  charge  of  the  court 
and  the  verdict  of  the  jury,  in  the  present 
case,  and,  in  my  opinion,  are  founded  in 
good  sense  and  the  convenience  of  man- 


1  23  Conn.  457. 
10 


146  COMMENTARIES   ON    SALES.  [BOOK    III. 

man,  J.,  subsequently  Chief  Justice,  differing  with  them,  but 
considering  himself  bound  by  the  decision  of  the  court  in  the 
previous  cases  ;  and  Waite,  C.  J.,  —  probably  for  the  same  reason, 

taking  no  part  in  the  case.     This  case  is,  even  more  than  the 

previous  Connecticut  cases,  distinctly  opposed  to  the  holding  in 
the  English  cases,  and  to  the  ratio  decidendi  of  even  the  cases 
in  New  York,  Massachusetts,  and  Maine,  which  are  usually  cited 
as  establishing  what  is  called  "  The  American  rule,"  but  which, 
we  think,  should  not  be  so  dignified ;  but  rather,  as  far  as  from 
our  examination  we  are  yet  enabled  to  form  an  opinion  in  the 
matter,  should  more  properly  be  designated  "The  Connecticut 
rule." 

The  facts  in  this  case  are  even  stronger  than  in  the  immediately 
preceding  case.  In  this,  as  in  that,  the  plaintiffs  delivered,  at 
the  defendants'  station,  for  transportation,  goods  for  New  York, 
marked  for  that  place,  to  which  they  were  consigned.  The  de- 
fendants transported  them  over  their  road  to  Bridgeport,  where 
they  shipped  them  on  board  a  steamer,  in  which  they  were  de- 
stroyed by  fire.  In  an  action  against  the  defendants  for  the  loss 
of  the  goods,  it  was  also  shown,  as  before,  that  the  defendants  ad- 
vertised that  they  would  "  way-bill "  freight  for  New  York,  and 
that  "  the  facilities  for  transporting  freight  having  been  greatly 
increased,  shippers  may  rest  assured  that  their  goods  will  be  taken 
through  to  their  destination  with  dispatch."  Handbills  to  the  same 
effect  were  distributed  by  the  defendants  along  their  line  of  rail- 
road. It  was,  in  addition,  proved  that  the  plaintiffs  had  been  in 
the  habit  of  sending  their  goods  to  New  York  "  by  the  Naugatuck 
railroad  ever  since  the  road  went  into  operation  ; "  that  the  entire 
freight  for  the  carriage  of  the  goods  to  New  York,  from  the  station 
at  Waterbury,  where  they  were  delivered  to  the  defendants,  was 
paid  by  the  plaintiffs'  agents  at  New  York  ;  that  the  defendants 

kind,  and  I  see  no  good  reason  for  depart-  what  company  is  in  fault.  Not  so  with 
ing  from  them,  sanctioned  as  they  are  by  the  owner  of  goods  which  have  been  dam- 
courts  of  the  highest  authority.  aged  on  a  long  railroad  route,  owned  by 
"  But  the  case  of  Hood  v.  The  New  several  companies.  The  decisions  in  that 
York  &  N.  H.  R.  R.  Co.,  is  also  relied  case  were  made  ujton  decided  opinions  of 
upon  by  the  defendants.  22  Conn.  1,  502.  the  members  of  this  court,  and  are  of  no 
That  was  a  suit  brought  to  recover  dam-  binding  efficacy  beyond  the  questions  there 
ages  for  an  injury  to  the  person  ;  this  is  •  involved.  And  if  they  are  to  control  the 
for  the  loss  of  goods.  The  judge  who  law  in  this  State,  in  relation 'to  the  trans- 
delivered  the  opinion  in  that  case  recog-  portation  of  passengers,  they  do  not  pre- 
nized  the  distinction.  He  says  :  '  But  if.  elude  us  from  deciding  questions  relating 
we  are  wrong  in  this,  it  does  not  follow  to  the  transportation  of  freight,  upon  prin- 
that  the  doctrine  of  the  English  cases,  as  ciple  and  authority.  For  these  reasons  I 
to  freight,  is  to  be  applied  to  passengers,  think  the  verdict  of  the  jurv  ought  not  to 
Passengers  can  take  care  of  themselves.'  be  disturbed."  Dissenting  judgment  of 
If  a  passenger  is  injured  upon  a  railroad,  Waite,  C.  J.,  in  Elmore  v.  The  Naugatuck 
he  knows  where  the  injury  happened,  and  R.  R.  Co.,  23  Conn.  479  et  seq. 
can  generally  ascertain  without  difficulty, 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OP  GOODS.      147 

were  engaged  in  the  business  of  transporting  freight  and  goods 
by  their  raih'oad,  and  had  received  freight  from  the  plaintiffs, 
and  other  parties  in  Waterbury,  for  transportation,  directed  to  New 
York,  in  the  same  manner  as  in  this  case,  for  a  long  time  prior  to 
the  loss  ;  and  that  the  defendants  had  never  made  any  demand  for 
the  freight  of  the  lost  goods  from  Waterbury  to  Bridgeport.  On 
all  this  evidence,  which  is  certainly  much  stronger,  in  some  re- 
spects, than  in  Muschamp  v.  Lancaster  Ry.  Co.,^  or  in  Weed  v. 
Saratoga,  &c.  R.  R.  Co.,^  with  reference  to  which  cases  it  was 
admitted  by  the  Connecticut  court  itself,  in  Hood  v.  New  York  & 
N.  H.  R.  R.  Co.,2  —  Ellsworth,  J.,  delivering  the  judgment  in  that 
case  as  in  this,  —  that  the  facts  in  those  cases  did  make  out  "  a 
primd  facie  case  merely;  "  it  was  held,  in  this  case,  that  the  plain- 
tiffs did  not  make  out  a  prima  facie  case,  and  a  nonsuit  was  sus- 
tained. We  are  quite  of  the  opinion,  with  the  plaintiffs'  counsel 
in  the  cilse,  that,  with  the  other  facts  in  the  case,  "the  omission 
of  the  defendants  to  ask  or  claim  pay  for  the  transportation  of  the 
goods  from  Waterbury  to  Bridgeport,  was  a  fact  furnishing  strong 
evidence,  and  from  which  the  jury  fairly  might  have  inferred  that 
the  defendants'  contract  was  to  carry  to  New  York  ;  and  that  the 
defendants  knew,  and  had  acted  upon  the  idea,  that  they  were  not 
entitled  to  compensation,  unless  they  fulfilled  their  contract."  And 
we  think  that  had  the  question  been  brought  up  in  the  shape  of  an 
action  for  freight  from  Waterbui-y  to  Bridgeport,  the  entiretv  of 
the  contract  by  the  defendant  to  "  take  "  the  goods  "  through  to  their 
destination  "  would  have  been  so  apparent  as  to  have  added  still 
further  confusion  to  the  decisions  of  even  the  Connecticut  court 
on  the  question  ;  and,  as  far  as  the  question  was  one  for  the  jury, 
we  doubt  very  much  if  any  intelligent  jury,  in  England  or  in  this 
country,  would  find,  on  such  facts,  otherwise  than  the  successive 
juries  did  find  in  Connecticut  in  this  case,  and  in  Hood  v.  N.  Y.  &, 
N.  H.  R.  R.  Co.4 

The  next  Connecticut  case  on  the  question  is  Converse  v.  Nor- 
wich &  N.  Y.  Trans.  Co.,^  which  purports  to  follow  the  previous 
cases.  The  defendants  ran  their  line  of  steamers  from  New  York 
to  New  London,  where  they  connected  with  the  New  London 
Northern  R.  R.  Co. ;  Stafford,  Connecticut,  being  on  the  line  of 
railroad.  Goods  were  received  by  the  defendants,  marked  for 
conveyance  to  Stafford,  for  which  they  gave  a  receipt,  dated  at 
New  York,  as  follows :  "  Received  from  P.,  in  good  order,  on 
board  the  Norwich  and  Worcester  boat,  bound  for  Stafford,  Conn., 

1  8  M.  &  W.  421.  «  22  Conn.  1,  502. 

2  19  Wend.  534.  6  33  Conn.  166. 
8  22  Conn,  at  p.  15. 


148  COMMENTARIES   ON   SALES.  [bOOK   III. 

the  following  packcages,"  &c.,  marked  for  the  consignees,  "  Staf- 
ford, Ct."  The  goods  were  carried  by  the  defendants  to  New 
London,  where  they  were  destroyed  by  fire.  One  entire  charge 
was  made  by  the  defendants  for  the  freight  of  goods  from  New 
York  to  Stafford,  the  bills  being  made  out  by  the  defendants, "  For 
transportation  of  merchandise  from  New  York  to  Stafford,  via 
New  London  ; "  and  such  bills  were  paid  by  the  plaintiffs  and 
others  for  the  conveyance  of  goods  from  New  York  to  Stafford. 
In  an  action  against  the  defendants  on  their  contract  to  carry  the 
goods  from  New  York  to  Stafford,  the  jury  found  for  the  plaintiffs. 
The  court,  following  their  previous  decisions,  held,  in  antagonism 
to  the  solid  body  of  law,  English  and  American,  that  the  company 
had  no  power  to  make  a  contract  for  carriage  extending  beyond 
their  own  immediate  route.  But,  outside  of,  and  going  farther 
than  this,  they  seem  to  hold  —  nay,  they  unquestionably  do  hold  ^ 
—  that  "  the  law  implies,  from  the  delivery  and  acceptance  of 
goods  for  carriage,  a  contract  to  carry  according  to  the  usage  of 
the  carrier's  business ;  and  if  marked  for  a  point  beyond  his  ter- 
minus, to  deliver  there  to  the  next  carrier  on  the  route  ;  "  and  — 
here  is  the  remarkable  holding !  —  that  "  in  the  absence  of  any  ex- 
press contract^'' "^  nothing  else  can  he  implied^  no  matter  what  the 
circumstances  may  be,  from  which,  in  England,  or,  we  should 
hope,  in  any  other  State  in  the  Union  than  Connecticut,  a  "  spe- 
cial" contract  might  be  implied  by  carriers  to  carry  the  goods 
beyond  their  own  immediate  route.  If  this  is  the  Connecticut 
rule,  we  should  hope  that  it  could  scarcely  be  called  "  The  Amer- 
ican rule  !  " 

Under  this  decision  the  doctrine  that  "  contracts  are  express  or 
implied  "  must  be  expurgated,  and  re-appear  as  "  contracts  may  be 
express  or  implied,  except  those  of  a  carrier  to  carry  goods  beyond 
his  own  immediate  route,  which  can  under  no  circumstances  be 
implied ;  but,  in  every  case,  must  be  expressed,  and  so  clearly  ex- 
pressed as  to  be  incapable  of  being  misunderstood,  or  they  are  not 
binding  on  the  carrier."  Under  such  a  view  of  the  law  the  court, 
which  had  previously  held  that  an  undertaking  to  "  take  "  goods 
"  through  to  their  destination  "  was  not  an  "  express  "  contract  to 
do  so,  nor  was  matter  from  which  such  a  contract  could  be  im- 
plied, could  not  be  expected  to  hold  that  the  giving  a  receipt  for 
goods  "  bound  for  Stafford,"  for  the  freight  or  carriage  of  which 
they  charged  a  full,  entire  freight,  was  a  contract  to  carry  them 
to  Stafford,  as  there  only  could  be  such  a  contract  where  it  was 
expressly  made,  and  if  undertaking  to  "  take  "  them  to  Stafford 
did  not  make  it  a  contract  to  "  take  "  them  there,  receiving  them 
1  See  pp.  177,  178.  2  Page  177. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      149 

and  charging  and  receiving  one  entire  payment  for  the  freight  for 
the  whole  route,  when  the  goods  were  only  "  bound  for  Stafford," 
clearly  could  not  make  such  an  express  contract,  —  an  implied 
contract  being  entirely  out  of  the  question ! 

We  think,  all  things  considered,  the  cases  in  Connecticut  on  the 
question  are  not  of  much  weight.  As  being  the  outcome  of  a 
decision  originally  of  but  the  barest  majority  of  the  court,  three 
judges,  —  the  two  leading  judges,  "Waite,  C.  J.,  and  Ilinman,  J., 
subsequently  C.  J.,  very  emphatically  dissenting  from  the  deci- 
sion, —  and  the  cases  themselves,  on  one  of  the  two  leading 
grounds  on  which  they  were  decided,  being  elsewhere  universally 
condemned  ;  and,  on  the  other,  fairly  abounding  in  contradictions 
and  the  crudest  of  absurdities,  and  being  opposed  by  the  solid 
body  of  English  law,  and,  so  far  as  we  have  yet  examined  the 
cases,  by  the  great  body  of  law  in  this  country  as  well ;  we  should 
expect  to  find  that  there  are  no  other  decisions  in  this  country 
whicli  harmonize  any  more  witli  them  on  one  point  than  they  do 
with  them  on  the  other.  And  on  this  other,  it  is,  in  effect,  alleged, 
as  we  have  already  quoted  ^  from  the  case  in  the  State  of  Maine, 
that  there  seems  not  to  be  another  State  in  the  Union  which 
has  adopted  their  view  of  the  law. 

The  cases  in  Vermont,  which  are  cited  in  the  Connecticut  cases 
and  elsewhere  as  being  opposed  to  the  English  decisions,  and  in 
which  we  shall  reasonably  look  for  some  such  statements  of  the 
law  as  we  find  in  Judge  Redfield's  works  on  Carriers  and  Rail- 
ways, we  next  take  up  for  consideration. 

The  first  of  these  cases  is  Farmers'  &  Mechanics'  Bank  v. 
Champlain  Trans.  Co. ,2  which  does  not  touch  the  question.  The 
question  here  was,  when  the  goods  had  reached  the  terminus  of 
the  route,  as  to  what  was  a  sufficient  delivery,  and  it  was  held  that 
to  determine  that  an  established  usage  was  important.  The  sub- 
sequent case  between  the  same  parties^  is  to  the  same  effect. 
The  case  came  up  the  third  time,  and  is  reported  in  23  Vermont, 
186,  when  the  previous  decisions  were,  in  effect,  sustained.  One 
of  the  head-notes  of  the  case  is  as  follows :  "  When  a  common 
carrier,  by  steamboat  or  other  vessel,  in  the  due  and  common 
course  of  his  business,  delivers  his  goods  or  parcels  into  the  cus- 
tody of  the  wharfinger  upon  the  wharf,  the  transit  is  ended,  and 
his  responsibility  as  carrier  ceases,  unless  he  have,  either  ex- 
pressly or  by  fair  implication,  undertaken  to  do  something  more ; 
and  the  question  as  to  the  time  and  place  when  the  duty  of  the 
carrier  ends  is  one  of  contract,  to  be  determined  by  the  jury  from 

1  Se&suprn,  p.  141,  n.  1.  3  18  Vt.  131, 

2  16  Vt.  52. 


150  COMMENTARIES   ON   SALES.  [bOOK   III. 

a  consideration  of  all  that  was  said  by  either  party  at  the  time 
of  the  delivery  and  acceptance  of  the  parcels  by  the  carrier,  the 
course  of  the  business,  the  practice  of  the  carrier,  and  all  other 
attending  circumstances,  the  same  as  any  other  contract,  in  order 
to  determine  the  intention  of  the  parties."  This  is  the  simplest 
of  elementary  law,  is  in  perfect  accord  with  the  actual  holding  in 
the  New  York,  Massachusetts,  Maine,  and  English  cases  which  we 
have  examined  on  this  subject,  and  with  the  views  of  Chief  Jus- 
tices Waite  and  Hinman,  and  is  in  flat  antagonism  to  the  holding 
of  the  mere  majority  of  the  judges  in  the  Connecticut  cases,  and 
to  their  reasoning  which  culminated  in  those  badly-decided,  abso- 
lutely nonsensical  cases. 

We  find  in  this  case,  quite  as  we  expected  from  the  evident 
misunderstanding  of  Judge  Redfield  in  his  works  on  Carriers 
and  Railways,  referred  to  by  us,^  that  the  Vermont  cases  are 
tinctured  with  his  inaccurate  views  on  the  subject.  We  are  not 
surprised  to  find  him  saying  in  this  case :  "  There  has  been  an 
attempt  to  push  one  department  of  the  law  of  carriers  into  an 
absurd  extreme,  as  it  seems  to  us,  by  a  misapplication  of  this 
rule  of  the  carrier  being  bound  to  make  a  personal  delivery, — 
that  is,  by  holding  the  first  carrier  upon  a  route  consisting  of  a 
succession  of  carriers  liable  for  the  safe  delivery  of  all  articles  at 
their  ultimate  destination."  Muschamp  v.  Lancaster  Ry.  Co.^  was 
evidently  the  leading  case  Judge  Redfield  then  had  in  view.  But 
that  case  did  not  rest  at  all  on  an  application  or  "  misapplication 
of  this  rule  of  the  carrier  being  bound  to  make  a  personal  deliv- 
ery," but  rather  on  the  fact  that  there  was  matter  in  that  case 
from  which,  prima  facie,  the  jury  might  imply  a  "  particular  con- 
tract." The  law  in  that  case  is  in  principle  identical  with  the 
law  as  we  have  quoted  it  from  the  head-note  of  the  Vermont  case, 
namely,  that  a  carrier  may,  "  either  expressly  or  hy  fair  implica- 
tion, undertake  to  do  something  more  "  than  merely  carry  goods 
over  his  own  part  of  an  entire  route ;  "  and,"  as  previously 
quoted  from  the  head-note  of  the  Vermont  case,  "  the  question  as 
to  the  time  and  place  when  the  duty  of  the  carrier  ends  is  one  of 
contract,  to  he  determined  hy  the  jury  from  a  consideration  of  all 
that  was  said  hy  either  party  at  the  time  of  the  delivery  and  accept- 
ance of  the  parcels  hy  the  carrier''  etc.,  "  the  same  as  any  other 
contract,  in  order  to  determine  the  intention  of  the  parties:' 

Indeed,  we  find  Judge  Redfield  himself  admitting  this,  where 
he  says :  3  "  Muschamp  v.  The  L.  &  P.  Ry.  Co."  is  the  only  Eng- 
lish case  much  relied  upon  in  favor  of  any  such  proposition,  and 

1  Supra,  p.  96  et  seq.  3  At  p.  209. 

2  8  M.  &  W.  421.  4  8  M.  &  W.  421. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      151 

that  case  is,  hy  the  court,  put  upon  the  ground  of  the  particular  eon- 
tract  in  the  case.^^  And  the  "  special "  or  ''  particular  contract  " 
in  that  case  was  one  that  arose  snnplj  by  "  fair  implication  "from 
all  the  "  attending  circumstances,  the  same  as  any  other  contract ;  " 
which,  where  it  is  so  to  be  implied,  is  quite  as  binding  as  an  ex- 
press contract.  And,  until  we  met  with  the  fallacious  Connecti- 
cut cases,  we  had  not  expected,  on  fairly  examining  the  cases  in 
this  country  (as  we  have  done  those  of  Massachusetts,  Maine,  and 
New  Yorlv,  as  well  as  of  Connecticut),  to  find  a  single  case  decided 
here  that  would  prove  really  to  be  counter  to  the  doctrine  of  the 
clear,  simple,  unquestionably  correct  decisions  in  the  English 
cases  on  the  general  subject. 

So  again,  we  find  Judge  Redfield,  in  effect,  approving  the  Eng- 
lish decisions,  where,  in  distinguishing  Weed  v.  Saratoga,  ko,.  R. 
R.  Co.,^  he  says :  "  That  case  is  readily  reconciled  with  the  gen- 
eral rule  upon  this  subject,  that  each  carrier  is  only  bound  to  the 
end  of  his  own  route,  and  for  a  delivery  to  the  next  carrier,  by  the 
consideration  that  in  this  case  there  was  a  kind  of  partnership  con- 
nection between  the  first  company  and  the  other  companies,  consti- 
tuting the  entire  route,  and  also  that  the  first  carriers  took  pay  and 
gave  a  ticket  through,  which  is  much  relied  upon  by  the  court ; " 
actually  adding :  "  And  in  such  cases,  where,  the  first  company 
gives  a  ticket  and  takes  pay  through,  it  may  he  fairly  considered 
equivalent  to  an  undertaking  to  he  responsible  throughout  the  entire 
router  That  is,  the  circumstances  may  be  such  as  will  warrant 
the  court  and  jury  in  implying  a  contract  to  carry  over  the  whole 
route,  which  will  as  much  bind  the  carrier  to  do  so  as  though  he 
had  expressly  contracted  to  that  effect. 

This  thoroughly  harmonizes  with  the  English  cases,  and  with 
all  the  American  cases  we  have  examined,  save  only  those,  as  we 
think  them,  utterly  untenable  decisions  by  the  bare  majority  of  the 
Connecticut  court,  which  met  with  the  emphatic  disapproval  of  the 
two  able,  successive  Chief  Justices  of  that  court  itself.  And  yet 
we  find  Judge  Redfield,  after  using  the  language  we  have  quoted 
from  his  judgment,  actually  going  on  to  say,  as  in  his  treatises : 
"  The  rule  laid  down  in  Garside  v.  Tr.  &  M.  Nav.  Co. ,2  that  each 
carrier,  in  the  absence  of  special  contract,  is  only  liable  for  the 
extent  of  his  own  route,  and  the  safe  storage  and  delivery  to  the 
next  carrier,  is  undoubtedly  the  better,  the  more  just  and  rational, 
and  the  more  generally  recognized  rule  upon  the  subject." 

Such  language,  whether  in  his  judgment  or  treatises,  is  alto- 
gether inexcusable.  As  we  have  seen  in  our  previous  analysis  of 
Garside  v.  The  Trent  Nav.  Co.,^  no  such  rule,  cither  expressly  or 

1  19  Wend.  534.  «  Ibid. 

2  4  T.  R.  581. 


]^52  COMMENTARIES   ON   SALES.  [BOOK   HI. 

which  by  the  remotest  implication  could  be  implied,  is  laid  down 
in  that  case  ;  nor  is  it  otherwise  than  in  full  harmony  with  the 
later  English  cases.  The  case  was  an  express  contract  to  carry 
goods  to  Manchester  only,  and  there  deliver  them  to  another  car- 
rier, to  be  taken  by  that  other  carrier  to  Stockport ;  and  as,  under 
the  express  terms  of  the  contract,  the  obligation  of  the  defendants 
as  carriers  ended  in  Manchester,  it  was  held  that,  their  carriage  of 
the  o-oods  as  |j»er  their  express  contract  being  there  ended,  they 
were°not  liable  as  carriers  for  the  accidental  destruction  of  the 
goods  by  fire,  after  they  had  been  warehoused  in  Manchester,  as 
the  defendants  were  then  merely  warehousemen,  and  no  longer 
carriers. 

The  actual  holding  of  the  Vermont  case  does  not,  any  more 
than  that  in  the  New  York,  Massachusetts,  or  Maine  cases,  at  all 
affect  in  any  way  the  sound  general  principles  of  construction  of 
contracts,  as  applicable  to  carriers,  as  laid  down  in  the  entire  un- 
broken range  of  English  cases  on  the  question,  from  Upston  v. 
Clark  1  down  to  the  latest  English  case  on  the  subject. 

Judge  Redfield  says,  in  the  Vermont  case  we  are  considering  :  2 
"The  defendants,  unless  they  have,  either  expressly  or  by  fair  im- 
plication, undertaken,  on  their  part,  to  do  something  more  than  de- 
liver the  parcel  to  the  tvharfinger,  are  no  more  liable  for  its  loss  than 
they  would  have  been  had  it  been  lost  upon  ever  so  extensive  a 
route  of  successive  carriers,  had  it  been  intended  to  reach  some 
remote  destination  in  that  mode.  But  if  the  plaintiffs  can  satisfy 
the  jury,  that  from  the  circumstances  attending  the  delivery,  or  the 
course  of  the  business,  they  were  fairly  justified  in  expecting  the 
defendants  to  make  a  personal  delivery  at  the  bank,  they  must 
recover ;  otherwise  it  seems  to  us  the  case  is  with  the  defendants." 
That  is,  if  the  contract  was  only  to  "  deliver  the  parcel  to  the  whar- 
finger," as,  in  effect,  it  was  in  Garside  v.  The  Trent  Nav.  Co.,^ 
then,  on  such  delivery,  the  contract  is  performed.  But  if,  "  either 
expressly  or  by  fair  implication^''  the  parties  "  undertake  "  "  to  do 
something  more  "  than  this,  as  in  Muschamp  v.  Lancaster  Ry.  Co.,* 
and  the  cases  following  it,  then  that  express  or  implied  contract 
must  be  performed ;  and  "  if  the  plaintiffs  can  satisfy  the  jury 
that/rom  the  circumstances  attending  the  delivery,  or  the  course  of 
the  business,  they  were  fairly  justified  in  expecting  the  defendants 
to  make  a  personal  delivery"  of  the  goods  at  their  ultimate  desti- 
nation, "  they  must  recover ;  otherwise  .  .  .  the  case  is  with  the 
defendants."  ^ 

1  2  C.  &  P.  596.  5  xt  is  also  worthy  of  note  in  this  ca.<«o 

2  At  p.  212.  (see  p.  214)  that  Judge  Redfield  lays  the 
^  4  T.  R.  581.  same  stress  on  one  through  payment  of 
*  8  M.  &  W.  421.  freight  as  is  done  in  the  English  cases  of 


PART  11.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      153 

All  this,  from  Judge  Redfield  himself,  is  a  clear  and  accurate 
exposition  of  what  is,  unquestionably,  the  only  possible  honest, 
intelligent  deduction  from  the  whole  uniform,  unbroken  series  of 
English  decisions  in  the  matter  ;  and  we  have,  so  far,  found  nothing 
to  convince  us  that  the  courts  of  any  State  in  the  Union,  except 
of  Connecticut,  have  decided  otherwise ;  and  the  alleged  "  Amer- 
ican rule  "  to  the  contrary,  so  far  as  we  have  yet  examined  the 
cases,  seems  to  have  no  further  existence  than  is  justified  by  the 
radically  unsound,  absurdly  contradictory  decisions  of  bare  ma- 
jorities of  the  court  in  Connecticut.  We  shall  indeed  be  surprised 
if  the  decisions  of  the  courts  of  any  other  State  have  to  be  added 
to  these.     We  shall  see.^ 

The  next  Vermont  case  is  Britnall  v.  The  Saratoga,  &c.  R.  R. 
Co.^  Here  the  defendants,  who  were  carriers  to  Castleton,  re- 
ceived goods  for  Boston,  but  under  a  receipt  which  meant  merely 
their  carriage  to  Castleton,  for  freight  to  that  place ;  thence  to  be 
forwarded  to  Boston.  The  court  so  held  as  the  fair  implication 
from  the  language  in  the  receipt.  The  main  question  in  the  case 
was  as  to  the  burden  of  proof  simply  ;  the  judge,  in  an  action  for 
the  loss  of  the  goods,  having  directed  the  jury  that,  the  goods  hav- 
infr  been  proved  to  have  been  delivered  to  the  defendants,  and  not 
received  at  their  ultimate  terminus,  the  burden  of  proof  was  on 
the  defendants  to  show  that  they  had  performed  their  part  of  the 
contract  by  delivering  the  goods  to  the  connecting  road  at  Castle- 
ton. We  apprehend  that  the  correctness  of  this  decision  will 
scarcely  be  anywhere  questioned.  The  same  question  was  de- 
cided in  Day  v.  Ridley,^  where  goods  were  delivered  to  the  de- 
fendants for  carriage  from  Burlington  to  Troy,  and  the  defendants 
claimed  that  the  burden  of  proof  was  on  the  plaintiffs  to  show 

Hyde  v.  The  Trent  Nav.  Co.,  5  T.  R.  389,  justice  cites  three  quite  importaut  cases, 

and   in    Muschamp  v.   Lancaster   Ry.,   8  the   soundness   of    the    decisions    in    all 

M.  &  W.  421,  as  an  assistant  in  the  con-  which  we  fully  recognise,  viz.,  Muschamp 

struction  of  the    carrier's  contract.      He  v.   Lancaster  Ry.   Co.,  8  M.  &  W.   421  ; 

treated  that  as  making  "more  strongly  in  Weed   v.    Saratoga,    &c.    R.    R.    Co.,    19 

favor  of  the  plaintiffs  than  anything  else  Wend.    534,    and   Farmers,   &c.    Bank  v. 

in  the  case,"  in  raising  an  implied  con-  Champ.    Trans.    Co.,    23    Vt.    186.      He 

tract  to  carry  the  package  to  its  ultimate  adds:    "It  has  never  been  quest  io7ied  that 

destination.  carriers,  whether  natural  or  artificial  per- 

1  In  Noyes  v.  The  Rutland,  &c.  R.  R.  sons,    might    by   usage   or  contract   [and 

Co.,  27  Vt.  110,  Redfield,  C.  J.,  deliver-  "contract"  involves  express  or  imjilied] 

ing  the  judgment,   it  is  said,  "It  seems  bind   themselves    to   deliver  ]iareels   and 

to  be  !iow  well  settled,  that  railroad  com-  merchandise  beyond  the  strict  limits   of 

panies,  as  common  carriers,  ma}' make  valid  their  own  line  in  town  and  countiy  ;  and 

contracts   to   carry  beyond  the  limits  of  in  such  case  could  only  exonc^rate  theni- 

their  own  road,  either  by  land  or  water,  selves  by  a  personal  delivery."     This,  as 

and  thus  become  liable  for  the  acts  and  we   have   shown,    is   exactly   the   law  as 

neglects   of  other   carriers,    in    no    sense  uniformly  held  in  England. 
under  their  control."     This  is   in  oppo-  -  32  Vt.  665. 

sition  to  the  Connecticut  cases ;  and,  to  ^  iq  y^^  43^ 

sustain  this  proposition,  the  learned  chief 


154 


COMMENTARIES   ON   SALES. 


[book  III. 


that  the  goods  were  not  delivered  at  Troy  ;  but  the  court  very 
properly  held  that  this  was  not  one  of  the  cases  where  the  plain- 
tiffs were  required  to  prove  a  negative. 

The  case  of  Morse  v.  Brainerd  ^  is  an  important  case  on  the  sub- 
ject, because,  while  on  the  one  hand  stating  inaccurately  the  law 
in  England,  the  case  itself,  like  so  many  of  the  other  cases  we 
have  found  in  this  country  which  are  assumed  to  be  decisions  op- 
posed to  those  in  England,  is  in  strict  harmony  with  the  English 
decisions.  The  court,  in  this  case,  held  —  again  right  in  the  teeth 
of  the  Connecticut  decisions,  on  both  grounds  on  which  those  cases 
were  decided  —  that  the  defendants  were  liable  for  injury  to  cattle 
happening  beyond  their  own  immediate  route,  under  an  implied 
contract  to  carry  them  safely  to  their  ultimate  destination.^ 


1  41  Vt.  550. 

2  Pierpont,  C.  J.,  in  delivering  the 
unanimous  judgment  of  the  court,  says 
(at  p.  553)  :  "The  principle  is  now  well 
settled  in  this  State  that  railroad  com- 
panies, as  common  carriers,  may  make 
valid  contracts  to  carry  and  transport 
property  beyond  the  limits  of  their  own 
roads  ;  and  when  they  do,  they  are 
bound  to  deliver  the  property  at  its 
place  of  destination,  according  to  their 
contract,  and  are  liable  for  all  injury  to 
such  property  prior  to  its  delivery,  although 
such  injury  happens  after  the  property 
has  passed  over  their  road  on  its  way,  and 
while  in  the  charge  of  other  carriers  over 
whom  they  have  no  control.  This  con- 
tract may  he.  cither  express  or  implied." 
This,  which  is  stated  to  be  the  settled  law 
in  Vermont  (one  of  the  States  which  like 
New  York,  Massachusetts,  and  Maine  have 
been  included  with  Connecticut,  as  hold- 
ing, on  the  question,  what  they  call  "The 
American  rule"),  is,  as  will  be  seen  by  the 
exhaustive  analysis  we  have  made  of  the 
English  cases,  supra,  pp.  75-96,  a  strictly 
accurate  statement  of  the  law  as  it  has 
been  uniformly  held  in  England.  And 
although  Pierj)ontj  C.  J.,  thus  so  clearly 
states  the  law  as  it  is  held  in  England,  for 
which  he  might  have  cited  Muschamp  v. 
Lancaster  Ry.  Co.,  8  M.  &  W.  421,  and 
the  other  English  authorities,  and  which 
he  says  is,  also,  the  "well-settled"  law  of 
Vermont  ;  like  Redfield,  C.  J.,  he  goes 
further  and  says  :  "In  England  the  rule 
is,  that  when  a  railroad  company,  as  com- 
mon carriers,  receive  property  destined 
and  directed  to  a  point  beyond  the  termi- 
nation of  their  own  road,  they  are  bound 
to  deliver  it  at  its  place  of  destination, 
without  a  stipulation  to  that  effect.  The 
law  imposes  that  obligation,  upon  the 
receipt  of  the  property,  and  if  the  com- 
pany would  avoid  such  obligation,  they 


must  do  it  by  a  stipulation  limiting  their 
liability  to  injuries  happening  upon  thfeir 
own  road."  Here  the  mistake  is  made  of 
treating  such  evidence  as  was  received  in 
Muschamp  v.  Lancaster  Ry.,  8  M.  &  W. 
421,  as  conclusive;  whereas  it  was  only 
referred  to  in  that  case  as  prima  facie 
evidence  ;  as  evidence  from  which  it 
would  be  competent  for  a  jury  to  infer  a 
contract  to  carry  goods,  which  a  railroad 
had  received,  "  destined  and  directed  to  a 
point  beyond  the  termination  of  their  own 
road,"  to  that  designated  point.  But,  as 
Lord  Abiuger,  in  that  case,  i)ut  it,  this  is 
not  "  conclusive  evidence  of  the  contract." 
It  is  merely  some  evidence  of  that  fact, 
which  may  be  strengthened,  as  it  was  in 
Muschamp  v.  Lancaster  Ry.,  8  M.  &  W. 
421,  by  the  surrounding  facts  and  circum- 
stances ;  or  weakened,  as  in  Upston  v. 
Clark,  2  C.  &  P.  598  ;  Gilbert  v.  Dale, 
5  A.  &  E.  543  ;  Syms  v.  Chaplin,  lb. 
634  ;  Scothorn  v.  South  Staffordshire  Ry. 
Co.  (as  regards  the  ultimate  destination, 
Australia),  8  Ex.  341  ;  and  in  several 
of  the  cases  in  this  country  which  we 
have  examined.  See  this  point  ably  con- 
sidered by  Chief  Justice  Waite,  in  his 
dissenting  judgment  in  Elmore  i'.  The 
Naugatuck  R.  R.  Co.,  23  Conn.,  457 ; 
set  out  by  us  in  full,  supra,  p.  143,  which  is 
a  very  emphatic  answer  to  the  incorrect 
statement  of  the  English  law  by  the  Ver- 
mont court.  But,  Pierpont,  C.  J.,  adds  : 
"  But  in  this  country  the  rule  established 
in  most  of  the  States  is,  that  the  company 
is  liable  for  injuries  that  occur  beyond  the 
termination  of  tiieir  own  road,  oidy  when, 
they  stipulate  to  deliver  the  property  at  a 
point  beyond,  and  that  is  the  extent  to 
which  the  decisions  in  this  State  have,  as 
yet,  gone,  and  is  as  far  as  we  are  now  dis- 
posed to  go."  And,  as  this  "  stipulation  " 
may  be,  as  they  admit,  as  we  have  quoted 
from  their  judgment,  and  as  they  repeat. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OP  GOODS.     155 


In  Hadd  v.  Express  Company  ^  though  the  law  is  erroneously 
stated  as  in  the  preceding  case,  as  though  the  law  were  different 


"express  or  implied,"  that  which  we 
have  clearly  shown  to  be  the  law  of  Eng- 
land is  here  admitted  to  be  "the  rule  es- 
tablished in  most  of  the  States,"  or,  the 
so-called  "American  rule."  Hence,  the 
Supreme  Court  of  Vermont  explain  how  it 
is,  that,  as  we  have  so  far  shown  is  the 
case,  there  is  —  outside  of  the  Connecticut 
cases,  which  are  decidedly  sui  generis, 
under  what  should  be  known  as  "The 
Connecticut  Rules"  and  not  "  The  Amer- 
ican Rule  "  —  such  an  absolute  uniform- 
ity in  the  piiinciple  of  the  cases  on  the 
subject  decided  in  England  and  in  tbis 
country ;  including  New  York,  Massa- 
chusetts, Maine,  and  now  Vermont.  No 
case,  better  than  the  Vermont  case  we  are 
now  examining,  of  Morse  v.  Brainerd,  41 
Vt.  551,  shows  the  entire,  absolute  sound- 
ness of  the  decision  in  Muschamp  v.  Lan- 
caster Ry.,  8  M.  &  W.  421,  and  the  suc- 
ceeding English  decisions  on  the  subject. 
As  the  law  on  the  subject  is  so  important, 
and  is  supposed  to  be  in  such  utterly 
irreconcilable  confusion,  we  spare  no  labor 
or  space  in  order  to  show,  as  best  we  can, 
how  extremely  plain  and  simple  it  is. 
The  fact  that,  on  the  principle  involved, 
there  should  be,  in  the  many  cases  de- 
cided in  England,  such  entire  uniformity 
as  there  is  ;  and  that  on  that  principle,  the 
courts,  in  every  case,  have  been  unanimous 
in  their  judgments  ;  and,  that,  in  England, 
the  correctness  of  such  principle  has  never 
been  even  questioned  by  counsel  or  text- 
writers,  shows,  at  least,  an  entire  absence 
there  of  any  doubt  as  to  the  soundness  of 
their  decisions  on  the  question.  In  Morse 
V.  Brainerd,  41  Vt.  550,  the  defendants 
claimed,  citing  the  Connecticut  and  some 
of  the  New  York,  Massachusetts,  and 
Vermont  cases  which  we  have  examined, 
that  they  were  not  liable  for  any  injury  to 
the  cattle  that  happened  after  they  passed 
off  from  the  roads  of  which  they  had  the 
charge  and  management,  on  to  the  connect- 
ing roads,  and  on  their  way  to  their  nlti- 
mate  destination.  The  court,  after  stating 
the  law  as  we  have  quoted  it  from  their 
judgment,  proceed,  in  the  strictest  har- 
mony with  the  English  decisions,  and  in 
very  emphatic  opposition  to  the  "  Con- 
necticut rules,"  thus  to  argue :  — 

"  If,  then,  the  defendants  are  to  be 
made  lia])le  in  this  case,  it  must  be  upon 
the  ground  that  they  received  the  property 
in  question  under  a  contract,  express  or 
implied,  to  deliver  it  at  Medford,  its 
place  of  destination.  Whether  there  was 
such  a  contract  or  not  is  mainly  a  question 


of  fact,  to  be  determined  upon  the  master's 
report  and  the  evidence  referred.  ["How 
thoroughly  English  !  "]  That  there  was 
no  express  contract  for  the  delivery  of  this 
property  at  Medford  is  conceded.  Was 
tliere  an  implied  contract  to  that  effect  ? 
From  the  master's  report  and  the  testi- 
mony of  B.,  one  of  the  defendants,  which 
is  referred  to  as  a  part  of  said  report,  it 
appears  that  there  was  a  business  arrange- 
ment entered  into  between  the  several 
roads  that  constitute  a  line  of  communica- 
tion by  railroad  from  Ogdensburgh,  in  the 
State  of  New  York,  to  Boston,  Mass.,  for 
the  transmission  of  passengers  and  freight; 
that  in  this  chain  the  Vermont  &  Canada 
and  the  Vermont  Central  railroads  con- 
stitute links;  that  under  this  arrangement 
when  a  car-load  of  property  was  sent  from 
one  point  upon  the  line  to  another  it  went 
to  its  destination  without  a  change  of 
cars  ;  the  amount  to  be  paid  for  carrying 
the  property  through  the  whole  distance 
was  agreed  upon  and  fixed  at  tlie  place  of 
departure  by  the  parties  receiving  it ;  this 
sum  might  be  paid  in  gioss  by  the  con- 
signor in  advance,  or  by  the  consignee  on 
its  arrival  ;  the  freight  was  not  to  be  paid 
to  the  several  roads  over  which  the  prop- 
erty passed  in  its  transit,  but  the  amount 
which  each  was  to  receive  was  adjusted  be- 
tween themselves  in  their  monthly  settle- 
ments. This  property  was  billed  through 
from  the  place  where  received  to  the  place 
to  which  it  was  sent ;  and  the  way-bill  in 
this  case  is  quite  significant  of  what  the 
practice  was,  and  how  the  parties  under- 
stood the  transaction.  It  was  as  follows : 
'  Merchandise  transported  by  the  trustees 
first  mortgage  bonds, Vermont  Central  Rail- 
road Company,  from  Swanton,Yt.,  to  Med- 
ford, Mass.,  November  14,  1859.'  Then 
is  entered  the  number  of  the  car  and  name 
of  the  owner,  name  of  the  consignee,  de- 
scription of  the  property,  weight,  rate  per 
hundred,  and  the  wliole  amount  of  the 
freight,  'payable  at  ilu  station  sent  to.' 
[These  italics  are  by  the  court.]  When  a 
party  sends  a  car-load  of  live  stock  over 
the  roads  he  is  entitled  to  a  free  pass  over 
all  the  intermediate  roads  on  the  train 
with  the  car  to  its  place  of  destination. 
Such  a  pass  was  given  to  Morse.  These 
facts,  and,  in  short,  without  stopping  to 
enumerate  further,  the  great  mass  of  facts 
and  testimony  rej)orted  by  the  ma.ster,  are 
consistent,  and  many  of  them  only  con- 
sistent, with  the  idea  of  an  assumed  lia- 
bility to  transport  the  property,  in  this 
case,   from  Swanton  to  Medford.     Such, 


1  52  Vt.  335. 


156  COMMENTARIES   ON   SALES.  [BOOK   III. 

in  Eno-land  from  what  it  is  in  this  country,  the  case  itself  is  de- 
cided tn  strict  conformity  with  the  holding  in  the  English  cases. 
In  this  case,  the  defendants'  agent  expressly  told  the  plaintiff, 
who  wished  to  send  a  package  by  express,  from  East  Berkshire 
to  Jericho,  Vermont,  "  that  the  charges  would  be  thirty-five  cents 
to  Essex  Junction,  and  that  he  could  not  bill  beyond  that  place 
as  the  defendants'  route  did  not  extend  beyond  it:'  The  plaintiff 
said  he  wanted  "  to  pay  through."  The  agent,  Paul,  replied  that 
he  thought  it  would  cost  twenty-five  cents  by  stage,  but  that  if  it 
should  be  more  the  plaintiff  must  pay  it.  No  contract  to  carry 
the  parcel  through  the  whole  route  as  carriers  could  possibly  be 
implied  from  such  facts,  any  more  than  from  the  facts  in  such 
cases  as  Upston  v.  Clark,^  Gilbert  v.  Dale,^  Syms  v.  Chaplin,^ 
Garside  v.  The  Trent  Nav.  Co.,^  or,  as  regards  the  original  con- 
tract, in  Scothorn  v.  South  Staffordshire  Ry.  Co.,^  to  carry  the 
goods  to  Australia.  The  court  in  the  Vermont  case  said,  just  as 
an  English  court,  on  the  same  facts,  would  have  said  :  "  In  the  light 
of  this  evidence,  it  seems  plain  to  us  that  the  only  undertaking 
assumed  by  the  defendants,  or  that  the  plaintiff  liad  a  riglit  to 
understand  was  assumed,  was  to  transport  and  deliver  the  pack- 
age to  the  stage-line  at  Essex  Junction.  Paul  told  the  plaintiff  lie 
could  only  bill  it  to  that  place,  because  the  defendant's  route  only 
extended  to  that  place.  What  was  said  and  done  about  paying 
for  the  transportation  beyond  there,  fairly  indicated  that  the  de- 
fendants were  to  assume  nothing  beyond  that  point."  ^  The  case 
was  distinguished  from  the  equally  well-decided  case  of  Morse  v. 
Brainerd,^  and  it  is  likewise  distinguishable  from  the  well-decided 

we  think,  must  have  been  the  understand-  taken  through  to  their  destination,  agreeing 

ing  and  expectation  of  Morse  and  the  sta-  to  way-bill  them  through,  and  other  evi- 

tion   agent  at  Swanton   at  the  time  the  dence  of  the  same  nature,  was,  after  some 

property  was   put  on  to  the   defendants'  fluctuation  and  amid  much  self-contradic- 

road  at  that  place.     It  was  according  to  tion,  in  opposition  to  the   English,   New 

the  regular  and  established  course  of  their  York,  Massachusetts,  Maine,  and  Vermont 

business,   and  such  an   agreement  would  cases,  held  to  be  not  even  primd  facie  evi- 

have  been  within  the  legitimate  scope  of  dence   of  a   contract   (though    previously 

the  authority  of  the  station  agent.     We  holding  the  contrary)  beyond  their  own 

think  the  fair  and  just  implication  from  immediate   route  ;   although,  as  we   have 

the  whole  case,  as  we  have  it  before  us,  is  seen  at  one  stage  of  the  matter,  in  Hood 

that  the   defendants,  when  they  received  v.  The  New  York  &  New  Haven  K.  R.  Co., 

the  property  of  Morse,  took  upon  them-  22  Conn.  502,  .508,  ct  seq.,  tliey  abandon 

selves  the  obligation  to  transport  the  prop-  that   position,   aud,    in   effect,    held    that 

ert)'  safely  from  Swanton  to  Medford,  and,  there  would  have  been  such  a  contract, 

such  being  the  case,   they  are   liable   to  but  that  the  company  under  their  charter 

Morse   for   the   injury  the   property   sus-  were  incapacitated  from  making  it. 

tained   on    its  way,    as  reported   by  the  i  2  C.  &  P.  598. 

master."  2  5  A.  &  ?:.  543. 

In  what  perfect  accord  is  all  this  with  3  5  A.  &  E.  6.34. 

the    English   decisions,   and   how   utterly  *  4  T.  R.  581. 

opposed  to  the  Connecticut  cases,  where  ^  8  Ex.  341. 

the  much  stronger  evidence  of  the  i.ssue  6  Hadd    v.    Express    Co.,    52    Vt.    at 

of  tickets  and  receiving  pay  for  the  entire  p.  342. 

route,  advertising  that  the  goods  would  be  ^  41  Vt.  550. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      157 

Eiio-lish  cases  on  the  subject,  such  as  Hyde  v.  The  Trent  Nav. 
Co.,^  Muschamp  v.  Lancaster  Ry.  Co.,^  Watson  v.  The  Ambergatc 
Ry.  Co.,^  Scothorn  v.  South  Staffordshire  Ry.  Co.,*  Crouch  v.  Lon- 
don &  N.  W.  Ry.  Co.,5  Wilby  v.  The  West  Cornwall  Co.,^  and  the 
other  sound  English  cases  on  the  subject,  which  are  similarly 
decided. 

On  the  whole,  we  think  the  Vermont  cases,  even  more  than  the 
New  York,  Massachusetts,  and  Maine  cases,  show,  at  once,  the 
singular  and  wide  misunderstanding  that  exists  in  this  country  as 
to  the  ratio  decidendi  of  the  English  cases  on  the  question,  and 
the  unquestionable  general  soundness  of  the  law  as  laid  down  in 
these  latter  cases  by  some  of  the  ablest  of  the  English  judges. 

As  the  decisions  of  the  courts  which  we  have  so  fully  examined 
are  those  which  are  mainly  relied  on  as  those  which  are  not  in 
accord  with  the  English  cases,'^  we  shall  group  together  the 
remaining  cases  from  the  State  and  Federal  courts,  which  are 
usually  cited  as  establishing  a  position  not  in  accord  with  the 
English  cases. 

Jameson  v.  The  Camden  &  Amboy  R.  R.  Co.^  is  a  case  in 
the  District  Court  of  Philadelphia,  than  which  nothing  can  be 
clearer.  The  receipt  was  expressly  "  to  deliver  [the  goods]  at 
our  office  in  New  York,  upon  payment  of  freight  therefor,  at  the 
rate  of  26^  cents  per  100  lbs."  It  was  shown  in  the  margin  of 
the  receipt  that  the  goods  were  marked  for  Camden,  Ohio,  and 
it  was  there  added,  "  To  be  shipped  for  Camden,  Ohio,  from 
New  York."  The  court  very  properly  held  that  this  did  not  show 
a  contract  by  the  defendants  to  carry  the  goods  to  Camden,  but 
merely  to  carry  them  to  New  York  for  a  specifically  agreed  rate 
of  freight,  and  then  to  ship  or  forward  them  to  Camden.  This, 
in  effect,  is  the  same  decision  as  in  the  English  cases  of  Syms  v. 
Chaplin,^  and  Garside  v.  The  Trent  Nav.  Co.,!*^  cases  which  have 
never  been  even  questioned  in  England,  much  less  reversed  or 
overruled  by  any  of  the  subsequent  cases,  as  improperly  in  this 
country  they  have  been  assumed,  by  Judge  Redfield  and  others, 
to  have  been.  The  mistake  made  in  this  case,  as  in  so  many  of 
the  American  cases,  which,  like  this,  are  decided  identically  as 
the  English  cases  are,  and  are  unquestionably  well  decided,  is 
in  placing  undue  stress  upon  the  language  of  Rolfe,  B.,  in  Mus- 
champ v.  Lancaster  Ry.,^^  as  though,  when  he  stated,  in  effect,  that 

1  5  T.  R.  389.  7  See  4  Am.  Law  Reg.  240. 

2  8  M.  &  W.  421.  8  4  Am.  Law  Rpg.  234. 
8  15  Jur.  448.  9  5  A.  &  E.  634. 

*  8  Ex.  341.  10  4  T.  R.  581. 

6  14  C.  B.  255.  "  8  M.  &  W.  421. 

6  2  H.  &  N.  703. 


158 


COMMENTARIES   ON   SALES. 


[book    III. 


when  a  railroad  receives  goods  for  carriage,  addressed  to  a  partic- 
ular place,  as  it  is  thereby  implied,  that,  as  the  sender,  prima 
facie,  delivers  them  to  be  carried  there,  so  it  is  likewise  implied 
that  the  receivers  receive  them  prima  facie  to  take  them  there  ;  and 
that  this,  in  the  absence  of  any  positive  agreement  to  the  con- 
trary, is  evidence  from  which  a  jury  may  infer  such  a  contract-; 
that  he,  in  effect,  meant  that  it  was  conclusive  of  such  a  contract. 
But,  while  what  he  sai/s  is  literally  true,  it  is  equally  true  that, 
even  in  the  absence  of  a  positive  agreement,  if  there  is  any  other 
fact  connected  with  the  receipt  of  the  goods,  such  as  a  one 
through  charge  and  payment  of  an  entire  freight,  as  there  is  in 
so  many  of  both  the  English  and  American  cases;  or,  on  the 
other  hand,  a  payment  of  the  freight  for  a  part  only  of  the  dis- 
tance, or  any  similar  fact;  the  implication,  on  the  one  hand,  will 
be  strengthened,  as  in  both  countries  it  has  been  held  to  be  ;  or, 
on  the  other  hand,  weakened  or  entirely  destroyed,  as  it  has  also 
been  held  to  be,  and  equally  so,  too,  as  our  very  full  and  exhaustive 
analysis  of  the  cases  shows,  in  England  as  in  this  country.^ 

1  This  explanation,  which  seems  to  us 
so  very  clear,  and  which  harmonizes  not 
only  the  whole  body  of  the  English  cases 
with  themselves,  but  the  mass  of  the  cases 
on  the  subject  in  this  country  with  the 
cases  in  England,  has  most  singularly 
been  lost  sight  of  in  hosts  of  well-decided 
cases  here,  where  it  has  been  improperly 
assumed  that  they  were  decided  and  being 
decided  contra  to  the  English  cases,  from 
those  in  5  T.  R.  389,  and  8  M.  &  W.  421, 
down  to  those  of  the  present  time.  The 
case  of  Mullarky  v.  P.  W.  &  B.  R.  R.  Co., 
9  Phila.  114,  where  there  was  an  express 
stipulation  "to  forward  the  goods  only, 
and  there  was  no  payment  of  freight  or 
other  circumstance  from  which  the  jury 
could  infer  a  contract  to  be  liable  as  car- 
riers," as  tliere  was  in  Muschamp  v.  Lan- 
caster Ry.  Co.,  8  M.  &  W.  421,  is  in  per- 
fect harmony  with  the  English  cases. 
Pennsylvania  Central  R.  R.  Co.  v.  Schwar- 
zenberger,  45  Pa.  St.  208  ;  Baltimore  & 
Philadelphia  Steamboat  Co.  v.  Brown,  54 
Pa.  St.  77;  Pennsylvania  R.  R.  Co.  v.  BeiTy, 
68  Pa.  St.  272  ;  American  Express  Co.  v. 
Second  National  Bank,  69  Pa.  St.  394  ; 
Camden  &  Amboy  R.  R.  Co.  v.  Forsyth,  61 
Pa.  81,  which  are  cited  as  cases  opposed  to 
the  English  cases,  are  in  the  strictest  con- 
formity therewith,  and  only  by  the  greatest 
distortion  can  be  deemed  otherwise.  They 
are  all  covered  by  our  observations  on  the 
Vermont,  Maine,  Massachusetts,  and  New 
York  cases,  many  of  which  they  greatly 
resemble.  While  what  we  have  said  of 
those  Pennsylvania  cases  is  perfectly  true, 
Clyde   V.   Hubbard,   88   Pa.   358,   had   it 


been  decided  in  England,  in.stead  of 
being  cited  as  it  is  (see  note  to  Wells  v. 
Thomas,  72  Am.  Dec.  236,  237)  as  an  au- 
thority for  what  is  called  "The  American 
Rule,"  would  have  been  considered  as  one 
of  the  most  extreme  of  the  late  English 
cases  on  the  subject.  The  head-note  of  this 
case  is:  "In  the  absence  of  stijndation  by 
a  carrier  to  transport  freight  beyond  the 
terminus  of  its  own  route,  it  is  not  re- 
sponsible for  the  default  of  tho.se  it  em- 
ploys to  convey  the  remainder  of  the  dis- 
tance ;  but  if  it  makes  itself  responsible  by 
contract,  or  if  an  agreement  to  be  so  can  be 
fairly  inferred  from  the  bill  of  lading 
[and,  clearly,  on  the  ordinary  principles 
governing  the  construction  of  contracts, 
equally  so  from  any  other  facts  from  which 
such  an  implication  can  arise],  it  will  be 
liable  for  a  misdelivery  of  the  goods  by 
another  carrier,  to  ivlwm  it  has  ddivered 
them  to  be  carried  to  their  iiltimate  desti- 
nation." In  what  perfect  accord  is  this 
with,  not  only  all  the  English  cases,  but 
with  all  the  American  eases  we  have  so 
far  examined  on  the  subject,  except  only 
those  Connecticut  cases,  which,  with  their 
congeries  of  blunders,  "stand  alone,  like 
Adam's  recollection  of  the  fall ! "  In 
delivering  the  judgment  the  court  say  : 
"  From  the  heading  of  the  instrument 
[/.  e.,  the  bill  of  lading  or  freight  receipt, 
which,  in  effect,  is  headed  the  same  as 
those  in  some  of  the  Engli.sh  cases]  the 
contract  for  the  carriage  of  the  books  ap- 
pears to  have  been  made  in  the  names  of 
the  defendants  below,  on  behalf  of  the 
'  Philadelphia    &    Charleston    Steamship 


PART  II.]   CONTRACTS  P'OR  THROUGH  CARRIAGE  OF  GOODS. 


159 


The  New  Hampshire  case  of  Moses  v.  The  Boston  R.  R.,i  does 
not  touch  the  question,  except  collaterally,  and  as  far  as  it  does 
so,  it  expressly  follows  English  decisions.^ 


Line,  and  Through  Freight  Line  South 
and  Southwest.'  The  case  containing  the 
goods  was  marked  'Hubbard  Bros. ,  Collins- 
ville,  De  Kalb  County,  Ala.,  viq,  Charles- 
ton. '  Tlie  description  of  the  carriers  and 
the  form  of  address  to  the  consignees  would 
naturally  imply  a  single  contract  for 
through  transportation  and  delivery  at  the 
point  of  final  destination."  This  is,  in 
effect,  exactly  what  is  said  by  Lord  Abin- 
ger  and  Baron  Rolfe  in  Muschamp  v.  Lan- 
caster Ry.  Co.,  8  M.  &  W.  421.  And  yet 
Clyde  V.  Hubbard,  88  Pa.  358,  is  one  of 
the  cases  cited  to  sustain  what  is  so  erro- 
neously called  "The  American  Rule  !  " 

1  24  N.  H.  7L 

2  There  is  another  New  Hampshire 
case,  Gray  v.  Jackson,  51  N.  H.  9,  which 
we  find  cited  on  both  sides  of  the  ques- 
tion ;  in  Book  XXL,  U.  S.  298  (ed.  of 
1884),  it  being  cited,  in  a  note  to  Michi- 
gan Central  R.  R.  Co.  v.  Mineral  Springs 
Manuf.  Co.,  Ibid.  296  ;  s.  c.  16  Wall. 
190,  as  sustaining  what  is  called  "  The 
American  rule  ;  "  and,  in  a  note  to  Wells 
V.  Thomas,  72  Am.  Dec.  228,  234,  it  is 
cited  as  following  what  is  known  as  "The 
English  rule."  As  New  Hampshire  is  one 
of  the  States  named  (Ibid.)  as  adopting 
"  the  rule  laid  down  in  Muschamp's  Case 
know  in  this  country  as  the  English  rule," 
we  will  defer  our  examination  of  this  case 
until  we  have  first  investigated  the  other 
cases  decided  in  this  country  which  are 
stated  to  be  opposed  to  the  English 
decisions. 

In  Grover  &  Baker  Co.  v.  Missouri  Pac. 
Ry.  Co.,  70  Mo.  672,  a  rather  amusing 
attempt  is  made  to  harmonize  the  English 
and  American  cases  on  the  subject,  as  fol- 
lows :  "That  a  laih'oad  may  by  con- 
tract subject  itself  to  the  obligation  of  a 
common  carrier  beyond  its  own  line,  is 
well  settled  by  the  weight  of  authority, 
but  as  was  said  in  R.  R.  v.  Pratt,  22  Wall. 
124,  the  result  of  American  authorities 
limits  the  carrier's  liability  as  such  to  his 
own  line,  when  no  special  contract  is 
made.  In  Perkins  v.  P.  S.  &  P.  R.  R., 
47  Mc.  593,  it  was  held  that  '  a  railroad 
may  be  bound  by  special  contract,  but  not 
otherwise,  to  transport  persons  or  proi)erty 
beyond  the  line  of  its  own  road.'  This 
remark  was  criticised  in  Lock  Co.  v.  Rail- 
road, 48  N.  H.  455,  in  which  we  think  it 
■was  shown  '  Ihat  tlie  term  express  contract 
couhl  hardly  liave  been  used  in  its  strict 
sense,  to  signify  a  contract  in  the  form  of 
a  direct  promise  or  undertaking,  in  lan- 
guage, oral  or  written,  proper  to  show  a 


positive  agreement,  since  the  judge  who 
delivered  the  opinion  of  the  court  speaks 
of  a  case  where  the  carriers  would  be  lia- 
ble on  the  ground  that  they  held  them- 
selves out  as  common  carriers  to  that 
place  ;  in  which  case  (remarks  the  judge 
in  the  New  Hampshire  case),  as  I  under- 
stand it,  the  contract  would  not  be  express 
in  the  strict  or  usual  sense  of  the  term, 
but  implied  from  the  conduct  of  the  party.' 
Taking  the  criticism  as  just,  the  doctrine 
may  be  stated,  that  a  railroad  company 
may  be  bound  by  contract,  express  or  im- 
plied, but  not  otherwise,  to  transport  per- 
sons or  property  beyond  the  line  of  its 
own  road.  As  thus  declared,  it  is  fully 
sustained  by  the  authorities,  both  in  tlie 
United  States  and  England."  We  have 
found  it  necessary,  more  than  once,  to 
direct  attention  to  the  uncertain  manner 
in  which  the  term  "  special  contract"  was 
used  in  many  of  the  cases.  In  the  New 
Hampshire  case  the  term  is  misquoted  as 
"express  contract,"  and  the  misquotation 
is  not  singular,  as  in  a  kind  of  misty  way 
it  is  often  used  as  though  "  express  "  were 
meant ;  and,  indeed,  as  we  have  shown, 
it  is  so  expressly  used  in  the  Connecticut 
cases.  But  the  absurdity  of  the  use  of 
the  term  in  that  sense  is  too  palpable. 
The  nearest  approach,  we  think,  that  can 
be  made  to  the  meaning  of  the  courts 
using  the  term,  is — taking  their  entire 
language  and  argument —  that  a  railway 
company  can  make  a  contract  expressly, 
or  to  be  implied  from  the  surrounding 
facts,  to  carry  goods  be3'ond  their  own 
immediate  route,  but  the  fact  that  they 
have  received  goods  for  carriage  specifically 
marked  for  a  destination  which  is  beyond 
their  own  immediate  terminus,  must  never 
be  taken  as  one  of  the  facts  from  w'hich 
such  a  contract  is  to  be  imjilied.  But  why 
it  should  not  be,  not  one  of  them  ever 
gives  the  slightest  intimation.  The  Mis- 
souri court  state  correctly  the  foundation 
of  the  English  decisions,  that  is,  that  it 
is  a  matter  of  the  construction  of  the  con- 
tract, express  or  iinjilicd,  in  the  ]iarticu- 
lar  case.  While,  as  we  have  shown,  the 
whole  mass  of  the  cases  in  this  country 
which  we  have  examined,  save  only  tliose 
in  Connecticut,  have  actually  been  decided 
on  the  same  principle  as  tlie  English  cases  ; 
if  the  courts,  in  so  deciding,  had  expressly 
stated,  as  they  have  in  fact  hold,  "  that  a 
railroad  company  may  be  bound  by  con- 
tract, express  or  implied,  to  transport  per- 
sons beyond  the  line  of  their  own  road," 
there  would  not  have  been  even  the  pre- 


160 


COMMENTARIES   ON   SALES. 


[book   III. 


Baltimore  &  Ohio  R.  R-  Co.  v.  Schumacher  i  is  a  case  identi- 
cal with  Garsidc  v.  The  Trent  Nav.  Co.,^  and  decided  in  precisely 
the  same  way.  The  mistake  the  court  make  in  this  case  is  in 
quoting  from  "  Redfield  on  Railways,  282,"  the  following :  "  The 
o-eneral  view  of  the  American  courts  is,  that  in  the  absence  of 
"specialQ)  contract,  the  rule  laid  down  in  the  earlier  English  cases, 
that  the  carrier  is  only  liable  for  the  extent  of  his  own  route,  and 
for  the  safe  storage  and  delivery  to  the  next  carrier,  is  the  more 
just  and  reasonable  one."  This  is  wrong  in  two  respects  :  first, 
in  implying  as  it  does,  with  the  context  from  Redfield,  quoted  by 
us,3  that  the  earlier  English  cases  are  at  all  different  in  principle 
from  the  later  ones,  which  they  are  not ;  and,  second,  in  asserting, 
as  the  extract  stands,  that  "  in  the  absence  of  special  contract," 
the  carrier  is  liable  for  "  delivery  to  the  next  carrier." 

In  "  the  absence  of  special  contract,"  which  may  be  express  or 
implied,  it  would  be  hard  to  say  that  he  would  even  be  liable  to 
deliver  to  the  next  carrier  ;  as  his  liability  to  do  so  or  not  to  do 
so  is  always  governed  by  the  express  or  implied  contract  under 
which  he  receives  the  goods.* 


tence  left  that  they  had  differed  from  the 
holding  in  the  English  cases,  as  regards 
the  law.  There  would  have  then  been 
left  simply  the  mixed  question  of  law  and 
fact  (a)  as  to  the  nature  of  the  contract 
which  was  to  be  implied  from  the  circum- 
stances in  the  particular  case.  Outside  of 
the  Connecticut  cases  we  have  already 
shown  that  in  not  one  of  the  American 
cases  which  we  have  examined,  is  the  con- 
struction different  from  what,  under  a 
similar  state  of  facts,  it  would  have  been 
in  England. 

Wells  V.  Thomas,  72  Am.  Dec.  228  ; 
s.  c.  27  Mo.  17,  is  another  Missouri  case. 
This  case  merely  shows  that  where  a  con- 
necting railway  company  contracts  —  of 
course,  expressly  or  impliedly  —  with  the 
original  receiving  company  for  the  trans- 
portation of  goods  over  an  entire  route  ; 
another  connecting  company,  being  no 
party  to  the  contract,  and  having  had  no 
notice  of  it,  has  the  right  to  collect  from 
the  consignee  their  own  freight  and  regu- 
lar charges,  and  if  these  exceed  the  price 
the  shipper  was  to  pay  for  the  entire  trans- 
port of  the  goods,  he  has  his  remedy  over 
against  the  company  with  whom  he  con- 
tracted. While  this  does  not  militate 
against  the  soundness  of  the  English  cases, 
it  does  go  very  far  towards  showing,  as  a 


matter  of  construction  of  the  contract, 
where  goods  are  received  marked  for  a  spe- 
cific destination,  for  which  an  agreed  price 
is  paid  or  to  be  paid  for  the  entire  transpor- 
tation, that  this  is  one,  and  but  one,  entire 
contract,  with  the  receiving  company  for 
the  carriage  over  the  entire  route  ;  precisely 
as  was  the  case  in  the  much  discussed  case 
of  Jluschampi;.  Lancaster  Ky.  Co.,  8  M.  & 
W.  421  ;  with,  in  this  latter  case,  another 
veiy  strong  additional  feature,  to  which  we 
have  not  yet  referred,  and  to  which  we 
have  met  with  no  reference  in  any  of  the 
cases,  but  which  we  shall  point  out  more 
specifically  at  the  close  of  our  examination 
of  this  class  of  the  cases. 

1  29  Md.  168. 

2  4  T.  R.  581. 

^  Supra,  p.  97. 

*  There  is  really  no  such  thing  as  a  case 
where  a  carrier  receives  goods  for  trans- 
]"iortation,  and  undertakes  to  transport 
them,  without  a  special  contract  express 
or  implied.  All  that  is  really  correct  in 
the  reiterated  passage  quoted,  is,  that  in 
the  absence  of  an  undertaking  to  transport 
the  goods,  the  carrier,  for  rcfitsing  to 
transport  them,  is  liable,  at  common  law, 
only  for  refusing  to  transport  them  over 
his  own  route  and  delivery  at  its  terminus 
in  the  customary  way.     But  this  has  no 


(a)  It  is  put  in  Gray  v.  Jackson,  51  case  more   particularly,  infra,  we   think 

N.  H.  9,  as  entirely  a  question  of  fact ;  we  will  be  able  to  show  that  it  is  rather 

but  we  cannot  quite  assent  to  that  posi-  what  is  often  called  "a  mixed   question 

tion.     When  we  come  to   examine  that  of  law  and  fact. " 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      161 

We  at  length  find  a  case  outside  of  Connecticut,  where  the 
facts  are  virtually  the  same  as  those  from  which  it  was  held  in 
Muschamp  v.  Lancaster  Ry.,^  that  it  was  competent  for  the  jury 
to  infer  a  contract  for  the  carriage  of  goods  over  an  entire  con- 
necting route  ;  and  which  is  decided  conti-a  to  the  last-named  case. 
The  case  is  Phillips  v.  North  Carolina  R.  R.  Co.^  The  plaintiff 
delivered  goods  to  the  defendants'  agent  at  Raleigh,  N.  C,  for 
transportation  to  Monroe,  La.,  the  goods  being  marked  for  this 
latter  place.  The  plaintiff  informed  the  agent  that  the  goods 
must  go  to  Monroe,  and  he  wanted  them  put  through  as  soon 
as  possible,  as  he  himself  desired  to  start  at  once,  and  would 
need  the  goods  as  soon  as  he  arrived  at  Monroe.  The  plaintiff 
offered  to  pay  the  freight  in  advance,  but  the  agent  declined  to 
take  it,  and  told  the  plaintiff  to  pay  at  Monroe  when  the  bale 
reached  that  place,  which  would  be  in  a  few  days.  The  goods 
were  safely  transferred  to  Charlotte,  the  terminus  of  the  defend- 
ants' road,  where  they  were  delivered  to  the  connecting  road, 
but  never  reached  their  destination,  having  been  lost  between 
Charlotte  and  Monroe.  On  the  trial,  the  jury,  in  reply  to  ques- 
tions put  to  them,  answered  that  the  defendants  made  a  special 
contract  to  transport  the  goods  from  Raleigh  to  Monroe,  and  that 
the  goods  were  lost  on  the  route.  The  court  instructed  the  jury 
that  the  defendants  had  power  under  their  charter  to  make  a  spe- 
cial contract  to  convey  to  Monroe,  and  there  was  evidence  to  be 
considered  by  the  jury  that  the  defendants  had  entered  into  such 
special  contract.  The  jury  found  for  the  plaintiff'.  On  appeal  by 
the  defendants,  the  court,  on  the  stereotyped  language  from  Red- 
field  on  Railways,^  held  that,  "  In  the  absence  of  a  special  con- 
tract the  liability  does  not  extend  beyond  the  terminus  of  the 
receiving  road  and  the  safe  delivery  to  the  other  road."  The  deci- 
sion of  the  court  below,  and  the  finding  of  the  jury  were  set  aside, 
on  the  nonsensical  ground  that  the  facts  proved  did  not  show  a 
^^  special  Ql)  contract."* 

application  to  the  case  where  he  does  tin-  Worcester  &  Nashua  R.  R.  Co.,  48  N.  H. 

dertuke  to  transport  them,  and  the  qnes-  339  ;  Dixon  v.  The  Richmond,  &c.  R.  R. 

tion  is  as  to  the  terms  of  the  express  or  Co.,  74  N.  0.  538  ;  and  Laughlin  v.  The 

implied   contract   which   is   expres.sed   or  Chicago  &  N.  W.  Ry.  Co.,  28  Wis.  204. 

involved   in   such   undertaking.     This  is  The  latter  two  cases  do  not   deal  at  all 

simply  a  question  of  construction  of  the  with  the  question  as  to  what  constitutes  a 

particular   contract,   either  expressed,   or  "special  contract;"    while,  in  the  New 

implied  by  the  surrounding  facts  and  cir-  Hampshire  case,  which  we  examine  more 

ciimstances.     This  is  manifest  in  all  the  fully  in  the  later  division  of  our  comments 

cases,  and  is  self-evident.  on  this  subject,  and  which,  in  effect,  is 

*  8  M.  &  W.  421.  he  same  as  the  North  Carolina  case,  it  is 
2  78  N.  C.  294.  neld  that  essentially  the  same  facts  do 
^  §§  162,  lf)3.  make  out  a  "special  contract."     It  is  also 

*  Outside  of  Redfield,  the  authorities  worthy  of  note  that  while  the  English 
cited  were  The  Nashua  Lock  Co.  v.  The     cases  hold  that  facts  such  as  those  iu  the 

VOL.  ir.  11 


162 


COMMENTARIES   ON   SALES. 


[book   III. 


Lawrence  v.  Winona  &  St.  Peter  R.  R.  Co  ,i  while  decided  by  a 
court  which  purported  not  to  agree  with  the  late  English  deci- 
sions, seems  to  us  to  go  even  beyond  those  decisions.  Tlie  goods 
in  this  case  were  received  "  to  be  forwarded,"  with  an  express 
provision  that  the  defendants  assumed  no  other  responsibility  for 
the  safety  of  the  goods  than  might  be  incurred  on  their  own  road. 
Under  such  a  contract  the  carriers,  in  England,  would  be  held 
liable  as  such  only  to  their  terminus,  and  as  forwarders  thereafter. 
But  in  the  Minnesota  case  the  defendants  were  held  liable  for  a 
loss  of  goods  in  the  defendants'  warehouse,  after  they  had  reached 
their  terminus,  and  while  they  were  there  awaiting  the  next 
carrier.  Irish  v.  The  Milwaukee  &  St.  Paul  Ry.  Co.^  holds  that 
carriers  receiving  goods  marked  for  a  destination  beyond  their 
own  route,  continue  liable  for  them  as  carriers,  where,  without 
delivery  or  notice,  or  an  attempt  to  deliver  them  to  the  next 
carrier,  they  store  them  in  their  own  warehouse  and  they  are 
there  accidentally  destroyed.^ 


North  Carolina  case  would  warrant  a  jury- 
in  inferring  a  contract  to  carry  goods 
through  to  their  ultimate  destination,  in 
the  North  Carolina  case,  as  far  as  the 
question  was  one  of  fact  for  the  jury,  the 
jury  expressly  found  that  the  facts  in  that 
case  did  show  such  a  special  contract.  It 
will  thus  be  observed  that  while  of  the 
three  cases  cited  in  the  North  Carolina 
case  two  of  them  do  not  affect  the  ques- 
tion involved  in  it,  the  third,  the  New 
Hampshire  case,  on  the  main  ground  on 
which  the  North  Carolina  case  was  decided, 

—  that  no  special  contract  was  shown,  — 
is  clearly  not  in  harmony  with  it.  And 
in  a  later  New  Hampshire  case,  Gray  v. 
Jackson,  51  N.  H.  9,  the  decision  is  ex- 
pressly opposed  to  the  North  Carolina 
case,  on  the  ground  that  the  question  is 
exclusivel)'  one  for  the  jury.  And  while 
we  cannot  assent  to  that  view  in  all  cases, 

—  a  point  we  consider  when  we  state  the 
New  Hampshire  cases  more  particularly, 

—  we  think,  if  in  any  possible  state  of 
facts  on  the  subject  there  could  be  a 
question  for  the  jury  as  to  whether  the 
facts  in  the  case  constituted  a  contract, 
and  what  that  contract  was,  the  facts  were 
such  in  the  North  Carolina  case.  And  we 
think,  not  only  under  the  uniform  hold- 
ing of  the  English  cases,  but  in  harmony 
with  the  large  majority  of  the  cases  in  this 
country,  which  are  usually,  but,  as  we  have 
shown,  erroneously,  cited  as  being  opposed 
to  the  holding  'of  the  English  cases,  the 
judge,  on  the  trial  of  the  North  Carolina 
case,  instructed  the  jury  correctly  on  both 
points ;  viz.,  that  the  defendants  had 
power  to  make  a  special  contract  for  the 


carriage  over  the  entire  route,  and  that 
there  was  evidence  to  be  considered  by 
the  jury  that  the  defendants  had  entered 
into  such  special  contract, 
i  15  Minn.  390. 

2  19  Minn.  376. 

3  In  all  such  cases  as  these,  as  in  Gar- 
side  V.  Trent  Nav.  Co.,  4  T.  R.  581,  as 
well  as  on  the  wider  question  as  to  the 
liability  of  the  receiving  company  beyond 
its  own  route,  we  think  it  is  simply  a 
question  of  contract,  express  or  implied. 
If,  as  in  this  latter  case,  the  contract, 
either  express  or  implied,  is  simply  for 
the  carriage  of  goods  to  a  specific  place, 
the  carrier's  liability  as  such  would,  of 
course,  terminate  when  the  goods  had 
reached  the  contract  terminus,  and  the 
carriers  would  not  be  liable  as  such  merely 
because  the  goods  remained  in  their  ware- 
house for  the  accommodation  of  the  ship- 
per or  his  agent.  It  is,  as  in  the  main 
question,  one  as  to  the  construction, 
whether  for  court  or  jury,  or  both,  of 
the  particular  contract.  Such  was  the 
case  in  McMillan  v.  Michigan,  &c.  R.  R. 
Co.,  16  Mich.  79,  where  the  question 
arose  under  a  bill  of  lading.  In  this  case 
(at  p.  119)  it  is  said  :  "  There  are  a  num- 
ber of  English  cases  in  which  it  has  been 
held,  where  carriers  received  goods,  and 
gave  receipt  therefor  which  specified  that 
tliey  were  received  to  be  sent  to  a  point  be- 
yond  their  line,  and  there  delivered  to  the 
consignee,  that  the  contract  was  one  for 
transportation  the  whole  distance,  upon 
which  the  first  carrier  might  be  sued  for 
a  loss  occurring  after  the  goods  had  passed 
out  of  his  hands."     For  this,  Muschamp 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      163 

The  head-note  of  Detroit  &  Bay  City  Ry.  Co.  v.  McKenzie,^  is : 
"  A  raih'oad  receiving  and  receipting  goods  for  transportation  to 
a  point  beyond  the  terminus  of  its  road,  is  not  to  be  understood 
as  undertaking  to  carry  the  goods  beyond  such  terminus,  unless 
there  is  an  express  promise  to  that  effect ; "  but  the  case  itself  is 
no  authority  whatever  for  anything  so  utterly  unsound.  What 
the  case  holds  is  that  where  a  railway  company  contracts  to 
carry  goods  to  its  own  terminus,  and  then  forward  them,  as  the 
agents  of  the  shipper,  to  a  point  beyond  their  own  route,  at  a 
fixed  rate  of  freight  for  the  whole  distance,  and  the  shipper  or 
consignee  is  charged  more  than  this  by  the  connecting  company, 
he  has  a  claim  against  the  first  company,  under  their  contract, 
for  the  excess  which  he  has  been  compelled  to  pay. 

In  Knight  v.  Prov.  &  Wore.  R.  R.  Co. ,2  in  the  bill  of  lading, 
there  was  an  express  exemption  of  the  carriers  from  liability 
beyond  their  own  immediate  line.  Berg  v.  The  Atchison, ^  is  to  the 
same  effect.  The  court,  in  this  case,  however,  say :  "  It  may  be 
conceded  that  when  the  contract  of  shipment  is  prepared  by  the 
carrier  and  is  doubtful  or  ambiguous  in  its  terms,  the  doubt  or 
ambiguity  is  to  be  resolved  in  favor  of  the  shipper  and  against 
the  carrier.  This  is  upon  the  general  rules  respecting  the  inter- 
pretation of  contracts.  Whether  the  rule  of  the  English  courts 
that  carriers  who  receive  goods  and  book  them  for  a  certain 
destination  are,  without  awy  further  or  special  contract  [this,  at 
last,  is  stated  intelligibly],  responsible  throughout  the  entire  route, 
is  a  question  which,  while  for  the  purposes  of  this  case  may  be 
answered  in  the  affirmative,  we  do  not  attempt  definitely  to 
decide."  The  Pittsburgh,  &c.  R.  W.  Co.  v.  Morton  *  simply  holds 
that,  without  a  contract,  carriers  are  not  bound  to  assume  the 
liabilities  of  such  beyond  their  own  route.  Notwithstanding 
the  distortion  of  the  English  decisions  to  be  found  in  some  of 
the  cases,  we  know  of  no  case  either  in  England  or  America  where 
this  absolutely  undeniable  proposition  is  controverted  in  terms ; 
although  text-writers  and  courts  often  clearly  imply  that  there 
are  cases  which  do  controvert  it. 

The  case  of  Crawford  v.  Southern  R.  R.  Assoc.^  is  one  where 
the  contract  was  that  the  goods  were  "  to  be  forwarded,"  and  the 

V.  Lancaster   Ry.,  8   M.  &  W.  421,  and  find  any  court  holding  that  the  carriers 

Collins  V.  Bristol  &  Exeter  Ry.,   li  Ex.  were  not  liable  to  perform  a  contract  in 

790  ;    5  H.   &   N.   969,  are   cited.     This  accordance  with  their  express  undertaking, 
shows   an   express  written    contract,   and  1  43  Mich.  609. 

assuming  that,    in   this  latter   case,    the  ^  13  R.  I.  572. 

term   "sent"  was  properly  construed  to  3  30  Kan.  561. 

mean  "  carried,"  then  we  have  the  ordin-  *  61  Ind.  539. 

ary  form  of  a  bill  of  lading.     On  such  a  *  61  Miss.  222. 

contract,  it  would   be  strange  indeed  to 


164  COMMENTARIES   ON   SALES.  [BOOK   III. 

court  held  that  this  did  not  make  the  receivers  liable  for  a  loss  of 
goods  on  a  subsequent  connecting  line,  by  which  the  goods  were 
bein"'  "forwarded."  As  the  contract  here  was  in  writing,  the 
court  itself  construed  the  contract,  and  held  that  the  words  "  to 
be  forwarded  "  did  not  mean  "  to  be  carried."  Outside  of  this,  the 
law  as  stated  in  the  case,  as  the  uniform  law  in  this  country, 
comes  so  very  closely  to,  as  to  be  virtually  identical  with,  what 
the  law  actually  is  under  not  only  the  English  decisions,  but 
under  the  large  number  of  cases  in  this  country  which  are  usually 
cited  as  sustaining  a  position  radically  opposed  to  the  English 
cases.  The  court  here  adopt  the  view  of  the  New  Hampshire 
court,  in  Gray  v.  Jackson,^  that  whether  there  is  a  contract  be- 
tween the  parties,  is  a  question  of  fact  to  be  determined  from  evi- 
dence, including  the  receipt  and  all  the  attending  circumstances, 
and  consider  it  error  to  suppose  that  what  is  called  the  English 
rule  was  established  as  a  matter  of  law;  "whereas  the  leading 
case  in  that  country  proceeded  upon  the  basis,  that  the  question 
of  a  contract  and  liability  was  one  of  fact."  This  comes  pretty 
close  to  our  own  view  of  the  case,  and  tends  to  show  that  the  state- 
ment in  the  Missouri  case,  stated  supra,  p.  159,  n.  2,  which  seemed 
so  simple  and  almost  absurd, — that,  in  efifect,  the  great  alleged 
difference  between  the  English  and  American  cases  merely 
amounts  to  this,  that  when,  in  the  latter,  the  courts  use  the  term 
"  special,"  as  they  usually  do,  or  "  express,"  as  they  sometimes 
do,  they  mean  not  express,  but  "  express  or  implied,^^  —  if  it  do  not 
actually  harmonize  all  the  cases,  makes  the  great  mass  of  the 
American  cases,  as  we  have  shown  in  our  analysis  of  them,  to  be 
in  the  most  perfect  accord  with  the  English  cases. 

The  Mississippi  court  go  on  to  say :  "  The  authorities  in  this 
country  are  uniformly  to  the  effect  that  common  carriers  may  con- 
tract to  carry  and  deliver  goods  at  a  point  beyond  their  own 
lines,  and  that  in  such  case  the  first  carrier  will  he  responsible  for 
loss  wherever  it  occurs,  —  the  contract  being  ascertained  and 
determined,  in  the  absence  of  an  express  ivritten  agreement,  from 
facts  and  circumstances.  [This  is  precisely  the  English  law,] 
Thus,  in  Cincinnati,  &c.  R.  R.  Co.  v.  Spratt,^  several  parties  or 
connecting  lines  were  associated,  for  the  transportation  of  freight 
from  Louisville,  Ky.,  to  New  York,  executing  through  bills  of 
lading,  and  each  charging  and  collecting  through  bills  of  charges. 
It  was  correctly  held,  that  each  were  chargeable  as  common  carriers 
between  the  termini  named,  and  that  in  such  cases  public  justice 
and  commercial  policy  require  a  stringent  construction  against 
any   intermediate   irresponsibility.     But  the  facts   of  that  case 

1  51  N.  H.  9.  2  2  Duv.  (Ky.)  4. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      165 

clearly  distinguish  it  from  the  one  at  bar,  wherein  there  is  no 
through  bill  of  lading ;  no  evidence  of  association,  arrangements, 
or  business  connections  for  through  transportation  ;  nor  proof  of 
charging  or  collecting  through  freight.  These  are  matters  of  fact 
to  he  established  on  the  trial  like  any  other  fact  in  the  case,  and 
from  which  a  through  contract  may  he  implied}  As  already  inti- 
mated, the  rule  in  this  country  is,  that  a  railroad  company  is  not 
responsible  for  the  non-delivery  of  freight  heyond  its  own  line, 
except  by  contract  express  or  implied." 

And  we  quite  confidently  assert  that  not  a  solitary  English 
case  can  be  found  on  the  subject  which  holds  the  contrary.  And 
it  is  from  an  entirely  incorrect  assumption  that  the  English  cases 
do  hold  a  doctrine  contrary  to  this,  that  so  many  of  the  American 
cases,  which  are  assumed  to  lay  down  a  different  doctrine,  are 
found,  on  examination,  to  be  in  perfect  accord  with  the  English 
cases.  Thus,  the  case  of  Nutting  v.  Conn.  River  R.  R.  Co. ,2  cited 
in  the  Mississippi  case,  differed  from  the  English  cases  in  the 
important  fact,  that,  in  the  case  in  1  Gray,  the  defendants  took 
pay  "  for  the  transportation  over  their  own  road  only,"  while,  in 
the  English  cases,  the  freight  was  one  entire  through  rate.  The 
case  of  Powell  v.  Mills  ^  does  not  touch  the  question. 

We  have  thus  examined  in  detail  the  great  mass  of  the  State 
cases  which  are  usually  cited  as  being  authorities  opposed  to  the 
English  decisions.  We  now  refer  to  cases  decided  in  the  Federal 
courts.  In  the  case  of  Michigan  Central  R.  R,  Co.  v.  Mineral 
Springs  Manuf.  Co.,^  the  misapprehension  as  to  what  the  law  in 
England  is,  is  again  apparent.  It  is  there  said  :  "  It  is  not  neces- 
sary in  the  state  of  this  record  to  go  into  the  general  subject  of 
the  duty  of  carriers  in  respect  to  goods  in  their  custody  which 
have  arrived  at  their  final  destination.  Different  views  have  been 
entertained  by  different  jurists  of  what  the  carrier  is  required  to 
do  when  the  transit  is  ended,  in  order  to  terminate  his  liability ; 
but  there  is  not  this  difference  of  opinion  in  relation  to  the  rule 
which  is  applicable  while  the  property  is  in  process  of  transporta- 
tion from  the  place  of  its  receipt  to  the  place  of  its  destination. 
In  such  cases  it  is  the  duty  of 'the  carrier,  in  the  absence  of  any 
special  contract,  to  carry  safely  to  the  end  of  his  line,  and  to 
deliver  to  the  next  carrier  in  the  route  beyond.  This  rule  of 
liability  is  adopted  generally  by  the  courts  in  this  country, 
although  in  England,  at"  the  present  time,  aad  in  some  of  the 
States  of  the  Union,  the  disposition  is  to  treat  the  obligation  of 

1  These  lines  which  we  have  italicized  2  iGray,  502,statedby  us,  swpra.p.  106. 

are  quite  in  accordance  with  the  English  ^  30  Miss.  231. 

decisions.  *  16  Wall.  318. 


IQQ  COMMENTARIES   ON   SALES.  [bOOK   III. 

the  carrier  who  first  receives  the  goods  as  continuing  throughout 
the  entire  route.  It  is  unfortunate  for  the  interests  of  commerce 
that  there  is  any  diversity  of  opinion  on  such  a  subject,  especially 
in  this  country ;  but  the  rule  that  holds  the  carrier  only  liable  to 
the  extent  of  his  own  route,  and  for  the  safe  storage  and  delivery 
to  the  next  carrier,  is  in  itself  so  just  and  reasonable  that  we  do 
not  hesitate  to  give  it  our  sanction." 

The  entire  inaccuracy  of  all  this  must  be  evident  to  any  one 
who  intelligently  examines  the  English  and  American  cases  on 
the  subject.  While  in  many  of  the  cases  in  this  country  the 
effect  of  the  English  cases  has  been  greatly  misunderstood  and 
misstated,  a  correct  analysis  of  them  all  will  show  that  in  Eng- 
land, equally  as  well  as  in  this  country,  the  whole  liability  of  the 
carrier  beyond  his  own  immediate  route  is  one  entirely  of  con- 
tract ;  and  in  Muschamp  v.  Lancaster  Ry.^  and  in  all  the  later 
English  cases,  equally  with  Garside  v.  Trent  Nav.  Co.,^  the  ques- 
tion involved  was  simply  as  to  the  construction  of  the  contract, 
express  or  implied,  in  the  particular  case.  And  in  this  country, 
this,  likewise,  has  been  the  case  ;  and,  therefore,  notwithstanding 
the  alleged  difference  in  principle  between  the  English  and  many 
of  the  American  cases  on  the  subject,  we  have  been  able  to  show, 
that,  with  the  most  insignificant  exceptions,  the  holding  in  the 
cases  in  this  country  has  been  in  the  strictest  accord  with  that  in 
the  English  cases. 

The  United  States  Supreme  Court  is  entirely  wrong  when,  in 
effect,  they  say  that  in  England,  "  in  the  absence  of  any  special 
contract,  .  .  .  the  disposition  is  to  treat  the  obligation  of  the 
carrier  who  first  receives  the  goods  as  continuing  throughout  the 
entire  route."  The  "  disposition  "  there  is,  as  we  have  exhaust- 
ively shown,  to  treat  the  obligation  of  the  carrier  simply  as  one 
of  contract,  and  what  that  contract  is,  is,  on  the  ordinary  prin- 
ciples of  common  law  applicable  to  contracts,  a  question  of 
construction  whether  for  the  court  or  jury,  or  both,  on  the  facts 
and  circumstances  of  each  particular  case.  Outside  of  this  radi- 
cal misstatement  of  the  law  in  the  Supreme  Court  of  the  United 
States,  which  is  repeated  by  the  text-writers  in  this  country,  and 
runs  through  so  many  of  the  cases,  there  is  nothing  in  Michigan 
Central  R.  R.  Co.  v.  Mineral  Springs  Manuf.  Co.^  affecting  the 
main  question  we  are  considering,  as  the  contract  in  that  case 
was  an  express  one  to  carry  the  goods  to  the  terminus  of  the 
receiving  company,  and  thence  to  forward  them  by  a  connecting 
carrier,  and  the  question  involved  was  whether  the  liability  of  the 

1  8  M.  &  W.  421.  8  16  Wall.  31S. 

2  4  T.  R.  581. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OP  GOODS.      167 

railway,  after  the  goods  had  reached  such  terminus,  and,  before 
they  were  forwarded,  was  that  of  carriers  or  warehousemen. 

In  Railroad  Co.  v.  Pratt,^  the  court  found  the  law  as  they  had 
misstated  it  above,  turned  against  themselves.  It  was  there  in 
their  own  language  broadly  stated,  thus :  "  The  rule  that  holds 
the  carrier  liable  only  to  the  extent  of  his  own  route,  and  for  the 
safe  storage  and  delivery  to  the  next  carrier,  is  in  itself  so  just 
and  reasonable  that  we  do  not  hesitate  to  give  it  our  sanction." 
And  again :  "  No  case  can  be  found  where  the  simple  acceptance 
of  goods  for  transportation  beyond  the  terminus  of  the  railroad, 
under  the  circumstances  stated  in  this  case,  has  been  held  as 
sufficient  to  render  the  Railroad  Company  liable  for  loss  on  a 
connecting  railroad,  except  in  those  courts  which  countenance 
the  English  rule  of  a  railway's  liability.  If  the  evidence  in  this 
case  is  sufficient  to  authorize  a  jury  to  find  that  there  was  an 
implied  contract  to  deliver  the  horses  safely  in  Boston,  the 
American  rule  approved  by  this  court  is  practically  overthrown." 
And  yet,  under  the  facts  of  the  case,  the  United  States  Supreme 
Court  were  compelled  to  hold  contrary  to  those  principles  which 
they  had  previously  incorrectly  laid  down ;  and  the  case,  like  so 
many  other  of  the  American  cases  which  we  have  examined, 
which  are  usually  cited  as  being  opposed  to  the  holding  in  the 
English  cases,  is  in  the  strictest  accord,  in  its  holding,  with  such 
cases. 

The  defendants  below  (plaintiffs  in  error)  were  a  railway 
company  whose  line  extended  from  Ogdensburg  to  Rouse's  Point, 
connecting  there  with  a  series  of  railways  running  to  Boston. 
The  plaintiff  arranged  with  the  defendants  for  the  transportation 
to  Boston  of  horses,  part  of  which  were  to  be  shipped  at  Potsdam 
on  the  defendants'  line,  and  the  remainder  of  them  at  Rouse's 
Point,  at  the  commencement  of  the  connecting  lines  ;  one  through 
rate  to  be  paid  for  the  carriage  to  Boston,  at  the  same  rate  as 
though  they  were  all  shipped  at  Potsdam.  The  freight  was  not 
paid  in  advance,  but  was  to  be  paid  in  Boston.  The  way-bill  was 
of  merchandise  "  transported  by  "  the  railway  "  from  Potsdam 
Junction  to  Boston,  vid  Concord  ; "  the  consignees  being  described 
as  in  Boston.  The  horses  were  destroyed  by  fire  on  the  connect- 
ing road.  On  the  trial  the  court,  in  accordance  with  what  is  so 
incorrectly  held  to  be  the  result  of  the  cases  generally  in  this 
country,  directed  the  jury,  that  the  defendants  would  not  be 
liable  for  a  loss  occurring  on  any  other  railway  in  the  line  unless, 
at  least,  they  "  specifically  and  expressly  "  (evidently  so  under- 

]  22  Wall.  123.  See  s.  c.  Book  XXII.  U.  S.  Sup.  Ct.  R.  827,  828  ;  from  both  of 
which  reports  we  quote. 


168  COMMENTARIES    ON   SALES.  [BOOK    III. 

standing  that  much-abused  term  "  special  contract ")  contracted 
to  trans'i)ort  the  horses  through  or  beyond  their  own  road  to  where 
the  accident  liappened ;  that  otherwise  they  would  be  forwarders, 
and  their  liability  would  be  discharged  by  safely  delivering  to 
the  next  road  in"  the  line.  Notwithstanding  this  incorrect  and 
entirely  too  favorable  direction  for  the  defendants,  the  jury  found 
for  the  plaintiff.  Similar  inaccuracy  is  also  observable  in  the 
case  in  the  Supreme  Court,  where  they  say :  "  The  fair  result  of 
the  American  cases  limit  the  carrier's  liability  as  such,  when  no 
special  contract  is  made,  to  his  own  line,  although  there  are  cases 
which  hold  the  liability  as  continuing  the  same  throughout  the 
whole  route,  and  such  is  the  English  doctrine.  [Nonsense !]  A 
discussion  on  this  point  is  unnecessary,  as  the  judge  on  the  trial 
held  the  rule  as  we  have  stated  it,  and  as  was  most  favorable  to 
the  defendants."    ' 

Clearly,  it  is  not  the  English  doctrine,  that,  independent  of 
contract,  there  is  such  a  liability  ;  but,  it  is  the  English  doctrine, 
with  which  the  holding  of  almost  every  case  in  this  country 
agrees,  contra  to  the  above  statements,  and  to  numerous  others  to 
the  same  effect,  that  such  contract  may  be  either  express,  or  be 
implied  from  the  facts  and  circumstances  of  the  particular  case. 
And,  as  we  have  intimated,  this  case  of  Railroad  Company  v. 
Pratt,!  jjj  j|;s  actual  holding,  is  in  the  strictest  accord,  on  the  main 
question  involved,  with  the  English  cases.^ 

1  22  Wall.  123,  129  et  seq.  State.     The  single  exception  to  this  hold- 

2  This  will  abundantly  appear  by  the  ing,  so  far  as  we  are  aware,  is  in  the  State 
following  quotations  from  the  unanimous^  of  Connecticut,  where  the  contrary  has 
judgment  of  the  Supreme  Court.  They  been  held  by  its  Supreme  Court.  .  .  . 
say  :  "The  defendants  were  an  incorpora-  Was  there  evidence  in  this  case  that  the 
tion  organized  under  the  general  railroad  Ogdeusburg,  kc.  R.  R.  Co.  did  contract 
law  of  tlie  State  of  New  York.  They  pos-  as  a  common  carrier  to  transport  this 
sessed  the  powers  given  to  corporations  property  beyond  its  own  terminus  over 
generally,  and  were  subject  to  the  corre-  other  roads  to  Boston  ?  Tlie  weight,  the 
spending  liabilities.  Assuming  the  case  force,  or  the  degree  of  the  evidence  is  not 
to  stand  upon  the  general  principles  ap-  before  us,  if  there  was  competent  evidence 
plicable  to  the  question,  the  doctrine  that  on  which  tJie  jury  might  lawfully  find  the 
a  railroad  company  may  subject  itself  to  existence  of  th£  contract  alleged.  Dirst  v. 
the  obligations  of  a  carrier  beyond  its  own  Morris,  14  Wall.  484;  Mills  v.  Smith, 
line  has  been  distinctly  held  in  the  State  8  Wall.  27.  Both  the  authority  of  Graves, 
of  New  York,  where  this  contract  was  tlie  station  agent,  and  tlie  evidence  of  Pratt 
made  ;  in  the  State  of  Massachusetts,  and  others,  of  the  making  of  the  contract, 
where  its  performance  was  to  be  com-  were  questions  of  fact  for  the  consideration 
pleted  ;  and  in  the  State  of  Vermont,  of  the  jury.  If  the  jury  hive  found  in  the 
where  the  alleged  injury  occurred.  In  plaintiff's  favor  on  these  points,  vpon  cvi- 
the  case  of  Burtis  v.  Buffalo  &  St.  Law-  de7ice  legally  sufficient  to  justify  it,  this 
rence  R.  R.,  24  N.  Y.  269,  it  was  held  court  cannot  interfere  loith  their  find- 
that  this  principle  applied  to  connecting  ings.  (a)  The  evidence  on  both  these 
roads  extending  beyond  the  limits  of  the  points  may  properly  be  considered  at  the 

(a)  This,    we    think,    is    an    accurate  cided  case  of  Muschamp  v.  Lancaster  Ry., 

statement  of  the  law,   and  is,  in  effect,  8  M.  &  W.  421;   but,  as  we  sliall  show, 

strictly  the  holding  of  the  much-attacked,  disagrees   with   the   holding    in   Gray   v. 

but,  we  think,   the   thoroughly   well-de-  Jackson,  .51  N.  H.  9. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS. 


169 


Insurance  Co.  v.  Railroad  Co.,^  another  of  the  cases  cited  as 
being  opposed  to  the  Enghsh  cases,  was  decided  on  an  express 
contract,  made  with  other  parties,  under  the  terms  of  which  the 
defendants  were  held  not  liable  for  a  loss  with  which  they  had 
nothing  to  do.  It  is  no  more  opposed  to  the  holding  in  the  Eng- 
lish cases  than  is  the  previous  United  States  Supreme  Court  case  • 
we  have  examined. 


same  time.  Pratt  testified  that  he  had 
for  many  years  been  in  tlie  habit  of  trans- 
porting horses  over  the  defendants'  road 
to  Boston,  to  the  number  of  two  hundred 
a  year,  and  that  Graves  had  been  the  sta- 
tion agent  at  Potsdam  for  tive  or  six  years  ; 
that  nearly  a  week  before  the  present  ship- 
ment. Graves  engaged  to  give  him  on  that 
day  two  good  stock-cars  to  carry  his  horses 
to  Boston,  and  that  the  cars  furnished  by 
Graves  had  always  come  over  these  roads 
and  delivered  the  horses  in  Boston,  and 
that  the  arrangements  made  by  him  were 
recognized  by  the  other  roads  ;  that 
Graves's  office  was  in  the  Potsdam  freight- 
house,  and  that  he  paid  the  freight 
through,  sometimes  at  Potsdam  and  some- 
times at  Boston  ;  that  on  this  occasion  he 
agreed  with  Graves  upon  the  price  through 
to  Boston,  viz.,  §55  a  car,  and  that  a  w-ay- 
bill  was  made  out  for  the  horses  and  cars 
to  Boston  at  the  price  mentioned.  Other 
witnesses  give  testimony  in  corroboration, 
which  it  is  not  necessary  to  refer  to. 
Graves  testified  that  he  was  the  station- 
master  at  Potsdam,  and  that  the  cars  were 
billed  from  Potsdam  to  Boston,  via  Con- 
cord, as  2^er  bill ;  (hat  the  price  agreed 
upon  was  not  paid  in  advance,  but  it 
might  have  been.  The  way-bill  was 
headed  thus  :  '  AVay-bill  of  merchandise 
transported  by  Ogdensburg  &  Lake  Cham- 
plain  R.  R.  Co.  from  Potsdam  Junction  to 
Boston  via  Concord,  March  28,  1868.'  It 
describes  the  two  cars  with  horses,  and  as 
consigned  to  Pratt  &  Brigham,  at  Boston. 
We  see  no  sound  objection  to  the  admis- 
sion of  this  way-bill  as  evidence.  If  a 
written  contract,  it  was  not  only  evi- 
dence, but  the  best  of  evidence,  what 
the  contract  was.  It  was  exhibited  to 
Pratt  before  the  cars  were  started,  as  a 
part  of  the  transaction.  If  not  a  contract, 
it  was  an  act  done  and  a  declaration  made 
by  the  agent  in  the  very  act  of  transacting 
the  business,  and  as  a  part  of  it,  which 
brought  it  within  the  principle  of  the  res 
gestae.  This  evidence  shows  that  the  oral 
engagement  was  '  to  carry  his  horses  to 
Boston  ; '  not  to  carry  to  Rouse's  Point, 
and  thence  to  forward  to  Boston,  but  'to 
carry "  as  well  and  as  fully  over  the  Ver- 
mont and  Massachusetts  roads  as  over  the 
Ogdensburg  road.  Again,  a  specific  price 
was  agreed  upon  Jor  transportation  over  the 


v)hole  route.  This  was  in  accordance  with 
the  practice,  and  wlietlier  j)aid  at  Potsdam 
or  at  Boston  was  unvmportant.  This  prac- 
tice had  been  continued  for  years,  and 
the  jury  had  the  right  to  hold  the  con- 
tract to  be  the  same,  without  reference  to 
pre-payment  or  post-payment.  The  jury 
were  justified  in  inferring  that  where  a 
carrier  fixes  a  price  for  transportation  over 
the  whole  route,  that  he  makes  the  entire 
contract  his  own.  One  who  carries  simply 
over  his  own  line,  and  thence  forwards  by 
other  lines,  would  ordinarily,  the  jury 
may  say,  inake  or  collect  his  own  charges, 
and  leave  tfie  remaining  charges  to  be  col- 
lected by  those  performing  the  remaining 
service.  Receipt  of  the  entire  pay  affords 
a  fair  presumjjtion  of  an  entire  contract. 
The  language  of  the  way-bill  is  quite 
expressive.  It  describes  '  merchandise 
transported  .  .  .  from  Potsdam  to  Bos- 
ton.' Transported  and  carried  are  equiv- 
alent terms,  and  quite  distinct  from  the 
idea  of  forwarding.  Whether  looked  upon 
as  a  contract  or  as  a  declaration,  or  an 
admission  simply,  the  way-bill  furnishes 
evidence  that  tlie  Ogdensburg  company 
undertook  to  carry  the  horses  to  Boston. 
In  Root  V.  Great  Western  R.  R.,  45  N.  Y. 
524,  in  speaking  of  the  contract  to  transport 
as  a  common  carrier  over  other  lines,  the 
court  say  :  '  Such  an  undertaking  may  be 
established  by  exjn-ess  contract,  ou  by  show- 
ing that  the  company  held  itself  out  as  a 
carrier  foi-  the  entire  distance,  or  received 
freight  for  the  entire  distance,  or  other  cir- 
cumstances indicating  an  understanding 
that  it  was  to  carry  through.'  We  think 
there  was  competent  evidence  before  the 
jury  that  tlie  company  undertook  to  carry 
this  property  to  Boston ;  and  the  jury 
having  found  such  to  be  the  fact,  the 
other  companies  are  to  be  deemed  the 
agents  of  the  defendants,  for  whose  faults 
the  defendants  are  responsible."  All  of 
this  reasoning,  especially  the  portions  we 
have  italicized,  as  well  as  the  actual  hold- 
ing in  this  case,  is  virtually  the  same  as 
in  Muschamp  v.  Lancaster  Ry.  Co.,  8  M. 
k  W.  421,  and  the  succeeding  English 
cases ;  and  yet  this  case,  among  other 
Federal  Court  decisions,  is  being  con- 
stantly cited  as  though  it  were  differently 
decided. 

1  104  U.  S.  146. 


270  COMMENTARIES   ON   SALES.  [BOOK   III. 

In  Myrick  v.  Michigan  Central  R.  R.  Co.,i  the  usual  error  is 
made  of  stating  —  this  time  a  little  more  specifically  than  usual  — 
that  in  England,  independent  of  contract,  express  or  implied,  the 
doctrine  is  that  at  common  law  the  rule  of  liability  adopted  is  that 
a  railroad  company  is  liable  for  goods  which  it  may  receive  for 
carriao-e,  not  only  for  loss  or  injury  on  its  own  line,  but  anywhere 
on  the  way  to  the  ultimate  destination  of  the  goods,  wherever  that 
may  be.  Such  a  statement  is  simply  sheer  nonsense.  Not  a  solitary 
English  case  can  be  found  which  is  decided  on  such  a  principle, 
or  in  which  such  a  ridiculous  proposition  is  laid  down.  In  every 
one  of  those  cases,  as  we  have  shown,^  it  is  simply  a  question  as 
to  the  specific  (or  "  special ")  contract,  expressed  or  implied,  in 
the  particular  case.  That  it  is  held  there  that  there  is  any  com- 
mon-law doctrine,  other  than  is  involved  in  the  principles  govern- 
ing the  construction  of  contracts,  making  carriers  liable  for  the 
transportation  of  goods  over  another  railway  connecting  with  their 
own,  is  one  of  the  grossest  of  fallacies.  We  doubt  very  much  — 
although  the  Supreme  Court  of  the  United  States  say  that  a  simi- 
lar doctrine  to  that  which  they  say  has  been  adopted  in  England 
prevails  in  some  of  the  States  in  this  country  —  if  any  of  the  cases 
in  this  country  will  warrant  such  an  assertion. 

"We  shall  see  directly,  when  we  come  to  examine  the  cases  in  this 
country  which  are  usually  cited  as  being  in  accord  with  the  Eng- 
lish cases,  whether  they  are  really  more  or  less  in  harmony  with 
the  English  cases  than  those  are  which,  though  cited  the  other 
way,  are,  in  the  vast  majority  of  them,  in  the  strictest  liarmony 
with  the  English  cases. 

The  perversion  of  the  English  cases  is  really  wonderful.  The 
language  in  Myrick  v.  Michigan  Central  R.  R.  Co.^  is  scarcely  less 
wonderful.  The  court,  after  referring  to  the  language  in  the  re- 
ceipt where  cattle  are  referred  to  as  "  marked  and  described  as 
above,"  and  to  a  clause  by  which  it  was  expressly  declared  "  that 
the  company  would  not  be  responsible  for  any  loss,  damage,  or 
injury  to  the  property  after  the  same  shall  have  been  sent  from 
its  warehouse  or  station,"  unanimously  say  ;  "  Though  this  rule, 
brought  to  the  knowledge  of  the  shipper,  might  not  limit  the  lia- 
bility impressed  by  a  specific  through  contract  [they  evidently 
mean  here  express  contract],  yet  it  would  tend  to  rebut  any  infer- 
ence of  such  a  contract  [that  is,  a  contract  to  be  implied  from  such 
fact]  from  the  receipt  of  goods  marked  for  a  place  beyond  the  road 
of  the  company. ^^ 

Then  here,  quite  as  is  held  in  Muschamp  v.  Lancaster  Ry.,*  they 

1  107  U.  S.  102.  3  107  U.  S.  102,  108. 

'^  Supra,  pp.  75-98.  «  8  M.  &  W.  4?1. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      171 

admit  that  there  is  an  "  inference  of  such  a  contract  from  the  receipt 
of  goods  marked  for  a  place  beyond  the  road  of  the  company  ;  "  but 
quite  right,  and  quite  consistent  with  the  English  cases,  they  claim 
that  the  express  provision  in  the  contract,  excluding  the  company 
from  liability  beyond  their  own  route,  will  "  tend  to  rebut  any  in- 
ference of  such  a  contract /ro?/i  the  receipt  of  goods  marked  for  a 
place  beyond  the  road  of  the  company."  And  yet,  though  making 
this  frank  and  thoroughly  correct  admission,  they  find  fault  with 
the  Supreme  Court  of  Illinois  for  holding  the  very  doctrine,  the 
correctness  of  which  they  themselves  have  only  just  admitted. 
Thus,  in  the  very  next  page  of  the  case,  they  say  :  "  Our  atten- 
tion has  been  called  to  some  decisions  of  the  Supreme  Court  of 
Illinois,  which  would  seem  to  hold  that  a  railroad  company  which 
receives  goods  to  carry,  marked  for  a  particular  destination, 
though  beyond  its  own  line,  is  prima  facie  bound  to  carry  them 
to  that  place  and  deliver  them  there  ;  and  that  an  agreement  to 
that  effect  is  implied  by  the  reception  of  goods  thus  marked.^ 
Assuming  that  such  is  the  purport  of  the  decisions,  they  are  not 
binding  on  us.  What  constitutes  a  contract  of  carriage  is  not  a 
question  of  local  law,  upon  which  the  decision  of  a  State  court 
must  control.  It  is  a  matter  of  general  law,  upon  which  this 
court  will  exercise  its  own  judgment.^  If  the  doctrine  of  the 
Supreme  Court  of  Illinois,  as  to  what  constitutes  a  contract  of 
carriage  over  connecting  lines  of  roads,  is  sound,  it  ought  to 
govern,  not  only  in  Illinois,  but  in  other  States  ;  and  yet  the 
tribunal  of  other  States,  and  a  majority  of  them,  hold  the  reverse 
of  the  Illinois  court,  and  coincide  with  this  court.  Such  is  the 
case  in  Massachusetts.^  If  we  are  to  follow  on  this  subject  the 
ruling  of  the  State  courts,  we  should  be  obliged  to  give  a  different 
interpretation  to  the  same  act  —  the  reception  of  goods  marked 
for  a  place  beyond  the  road  of  the  company  —  in  different 
States,  holding  it  to  imply  one  thing  in  Illinois  and  another 
in  Massachusetts." 

And  yet,  although  they  have  themselves  only  just  before  ad- 
mitted that  "  the  receipt  of  goods  marked  for  a  place  beyond 
the  road  of  the  company  "  does  "  imply,"  or  warrant  an  "  infer- 
ence of  such  a  contract"  (which  implication,  or  inference,  or 
primd  facie  evidence,  they  themselves,  in  effect,  say  that  notice 
that  the  company  was  only  to  be  held  responsible  on  its  own  line 
^^  would  tend  to  rebuf'')  to  carry  beyond  its  own  route,  they  find 

1  Illinois  Central  R.  R.  Co.  V.  Franken-  U.  S.  14;  Hough  v.  Railway  Co.,  100 
burg,  .'54  111.  88;  Illinois  Central  R.  R.  Co.      U.  S.  213. 

V.  Johnson,  34  111.  389.  3  Nutting  v.  Connecticut  River  R.  R. 

2  Chicago  Citv  v.  Robbins,  2  Black,  Co.,  1  Orav,  b02  ;  Burroughs  v.  N.  &  W. 
418  ;  Railroad  Co.  v.  National  Bank,  102     R.  R.  Co./lOO  Mass.  26. 


172  COMMENTARIES   ON   SALES.  [BOOK   III. 

fault  with  the  Supreme  Court  of  Illinois  for  holding  with  them- 
selves that,  '^  prima  facie,''  such  evidence  does  import  such  a 
contract ! 

The  Massachusetts  cases  too,  as  we  have  shown,  do  not  hold 
contra  to  the  doctrine  of  the  law  as  stated  from  the  Illinois  cases, 
but  in  effect  hold  very  much  to  the  same  effect,  as  is  admitted  by 
the  Supreme  Court  of  the  United  States  themselves,  that  the  pre- 
sumption, inference,  implication,  or  prima  facie  case,  resulting 
from  receiving  goods  for  shipment  marked  to  an  ultimate  destina- 
tion beyond  their  own  immediate  route,  may  be  rebutted  by  such 
facts  as  are  stated  in  Railroad  Co.  v.  Pratt,^  or  by  the  receipt  of 
the  freight  for  the  goods  over  their  own  portion  of  the  route  only. 
Notwithstanding  these  glaringly  contradictory  positions,  —  so  no- 
ticeable in  all  this  class  of  cases,  —  in  Myrick  v.  Michigan  Cen- 
tral R.  R.  Co., 2  the  actual  holding  in  it,  as  in  the  other  cases 
decided  by  the  United  States  Supreme  Court  which  we  have 
examined,  is  perfectly  consistent  with  the  English  cases,  and  with 
the  law  as  quoted  from  the  Supreme  Court  of  Illinois.  In  the 
case  itself  there  was  an  express  provision  in  the  contract  exempt- 
ing the  carriers  from  liability  beyond  their  own  route,  and  there 
was  nothing  whatever  in  the  case,  with  all  its  facts  and  circum- 
stances, from  which  a  contract  could  possibly  have  been  inferred 
for  liability  by  the  defendants  beyond  their  own  route. 

In  the  case  of  Stewart  v.  Terre  Haute  &  I.  P.  Co.,^  in  the  United 
States  Circuit  Court,  the  facts  are  virtually  identical  with  those 
in  Railroad  Co.  v.  Pratt ;  *  but  in  the  Circuit  Court  case  the  judge 
was  evidently  carried  away  with  the  reiteration  of  the  phrase 
which  has  led  to  so  much  fallacious  reasoning,  — "  In  the  absence 
of  a  special  contract  ^  the  carrier  is  liable  only  to  the  extent  of 
his  own  route,  and  for  the  safe  storage  and  delivery  to  the  next 
carrier,"  —  and  the  holding  of  the  Supreme  Court,  in  Railroad  Co. 
V.  Pratt  ^  was  not  followed.     The  attempt  made  by  the  Circuit 

1  22  Wall.  123.  "special  contract"  is  used  in  Bishop  on 

2  107  U.  S.  102.  Contracts,  §  104,  incorrectlj-,  as  s_vnouy- 

3  1  McCrary,  312.  mous  with  a  sjiccialty, — i.e.,  a  contract 
*  22  Wall.  123.  by  deed.  As  a  matter  of  pleading,  an 
^  The  term  "special  contract"  is  usu-  action  on  a  specialty  is  in  covenant  ;  an 

ally  and  pro])erly  used  in  connection  with  action  on  a  "special  contract,"  on  the 
pleading,  as  in  Witherington  v.  Buck-  other  hand,  as  the  term  is  used  by  the 
land,  Cas.  Temp.  Hardw.  295,  to  distin-  common-law  writers,  is  in  special  assump- 
guish  the  case  where  the  action  is  in  sit.  Bishop  also  makes  the  mistake  of 
special  assumpsit,  on  the  special  or  par-  speaking  of  a  special  contract  as  the  con- 
ticular  contract,  from  the  case  where  the  verse  of"a  simple  contract,  or  contract  by 
action  is  in  wicieftztaAiM  assumpsit.  But  the  parol.  A  specialty  —  not  a  special  con- 
term  is  not  at  all  used  in  that  sense,  nor  tract  —  and  a  simple  contract  are  the  two 
in  any  other  fairly  intelligible  sense,  in  classes  of  contracts,  by  deed  and  by 
those  cases  where  it  is  employed  in  con-  parol, 
nection  with  the  liability  of  a  carrier  be-  6  22  Wall.  123. 
yond  his  own  immediate  line.     The  term 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      173 

Court  judge  to  distinguish  the  cases,  in  one  important  particular, 
shows  the  grossest  carelessness  on  his  part.  It  was  not,  in  this 
case,  a  question  as  to  the  effect  of  receiving  goods  marked  for  a 
specific  destination,  but  as  to  what  was  the  contract  between  the 
parties  from  facts  virtually  identical  with  those  in  Railroad  Co.  v. 
Pratt.^  We  have  already  stated  the  facts  in  the  latter  case.  Those 
in  the  Circuit  Court  case  were  as  follows :  The  plaintiff  in  this 
case,  as  in  the  Supreme  Court  case,  had  been  in  the  habit  of  ship- 
ping over  defendants'  line  to  points  beyond  its  terminus  ;  and  the 
arrangements  made  in  this  case  were  similar  to  the  previous  trans- 
action between  the  plaintiff  and  defendants.  The  defendants' 
line  extended  to  Indianapolis,  where  it  connected  with  another 
railway,  part  of  a  through  line  to  Buffalo.  The  plaintiff  informed 
the  agent  of  the  defendants  at  East  St.  Louis  that  he  desired  to 
ship  a  lot  of  cattle  to  Buffalo,  and  inquired  of  said  agent  whether 
the  defendants  were  shipping  and  ivould  take  the  cattle  for  ship- 
ment. The  agent  replied  that  they  were  shipping  at  that  time, 
and  could  take  the  cattle ;  and  in  answer  to  an  inquiry  by  the 
plaintiff,  informed  him  that  the  through  rate  to  Buffalo  was  i70 
per  car.  The  plaintiff  thereupon  agreed  to  ship  over  defendants'' 
road,  and  did  so.  The  freight  iv  as  paid  at  the  end  of  the  route,  to 
the  last  shipper,  as  was  customary  in  such  cases,  and  each  of  the 
lines  over  which  the  shipment  passed  received  its  proportion,  the 
defendants  receiving  payment  only  for  the  carriage  to  Indianap- 
olis. There  was  no  written  contract ;  but  a  memorandum  was 
made  by  the  defendants'  agent  showing  the  number  of  the  cars  on 
which  the  cattle  were  shipped,  the  name  of  the  shipper,  the  num- 
ber of  cattle,  the  names  of  the  consignees,  and  the  destination. 
It  seems  to  us,  if  there  is  evidence  of  any  contract  whatever  in 
this  case,  it  is  evidence  of  a  contract  by  the  defendants  to  carry 
the  cattle,  at  one  agreed  through  rate,  to  Buffalo.  Unless  there 
was  evidence  of  such  a  contract  one  can  certainly  see  nothing  in 
the  facts  which  expresses  a  different  contract ;  nor  was  there  a 
solitary  thing  expressed  from  which  in  any  possible  way  a  differ- 
ent contract  could  be  implied.  The  fact  that  the  different  com- 
panies divided  up  the  gross  sum  which  the  plaintiff  agreed  with 
the  defendants  to  pay  them  for  the  total  carriage  of  the  cattle  to 
Buffalo,  could  not  affect  him.  He  had  no  contract  with  the  other 
companies,  and  if  they  had  a  contract  among  themselves  as  to 
the  division  of  the  money  which  he  had  agreed  with  the  defend- 
ants to  pay  them  for  the  through  carriage  of  the  cattle,  that  could 
not  alter  the  character  of  his  contract  with  the  defendants.  The 
distinctions  which  the  judge  in  the  Circuit  Court  case  takes  as 

»  22  Wall.  123. 


174  COMMENTARIES   ON   SALES.  [BOOK   III. 

between  it  and  Railroad  Co.  v.  Pratt  ^  are  (1)  that  in  the  latter 
case  tlie  court,  on  a  similar  state  of  facts,  sustained  the  finding 
of  the  jury  which  found  there  was  one  entire  contract  for  a 
through  carriage  of  freight ;  while,  in  the  Circuit  Court  case, 
the  court  itself  had  the  power  of  the  jury  to  find  on  the  facts. 
But  the  Supreme  Court  held  that,  as  a  matter  of  law,  such  a 
contract  was  well  found  by  the  jury,  and  sustained  it  on  prin- 
ciples of  law.  While,  on  the  other  hand,  the  Circuit  Court  held, 
also  on  principles  of  law,^  that  such  facts  did  not  make  out  even  a 
primd  facie  case  of  such  a  contract.  In  this  holding  it  is  entirely 
opposed  by  what  we  think  is  the  much  sounder  decision  of  the 
United  States  Supreme  Court  in  Railroad  Co.  v.  Pratt.^  The 
court,  in  the  one  case  quite  as  much  as  in  the  other,  had,  con- 
trary to  the  views  of  the  Circuit  Court  judge,  "  to  determine 
not  only  the  competency,  but  the  sufficiency  of  the  evidence ; " 
mere  competency  of  evidence  amounting  to  nothing  in  either  case 
if  not  sufficient  to  establish  the  fact  in  controversy.^  There  is 
clearly  nothing  in  the  first  point. 

(2)  The  other  distinction  taken  is  still  worse.  After  stating 
some  of  the  facts  in  Railroad  Co.  v.  Pratt,^  which  are  essentially 
the  same  as  those  in  the  Circuit  Court  case,  the  Circuit  Court 
judge  goes  on  to  say :  "  It  was  held  that  these  facts,  in  connec- 
tion with  the  further  fact  that  the  plaintiff  had  been  for  many 
years  in  the  habit  of  transporting  horses  over  defendants'  road  to 
Boston,  and  that  a  rate  for  the  whole  route  ivas  agreed  tipon  and 
paid,  would  justify  the  jury  in  finding  that  there  was  an  engage- 
ment to  carry  the  horses  through  to  Boston.^  It  does  not  appear 
from  the  report  of  that  case  whether  the  first  carrier  was  paid  the 
price  agreed  upon  for  transportation  over  the  whole  route,  but  I 
infer  that  suck  was  the  case  from  the  remark  of  the  court  that  the 
'  receipt  of  the  entire  pay  affords  a  fair  presumption  of  an  entire 
contract.' " 

This  inference  was  entirely  unwarranted,  and  in  both  of  these 
facts  here  named  the  cases  were  the  same,  viz.,  as  to  the  previous 
similar  transactions  of  the  parties,  and  as  to  the  payments  not 
being  made  to  the  contracting  defendants,  but  at  the  other  ter- 
minus.7     On  the  whole,  then,  we  think  Stewart  v.  Terre  Haute  & 

22  "Wall.  123.  have  justified  the  jury  in  finding  the  very 

2  See  pp.  315,  316.  reverse. 

3  22  Wall.  123.  ^  On  this  latter  point,  the  judge  of  the 
*  .See  supra,  pp.  168,  169,  n.  Circuit  Court  is  not  accurate  in  his  state- 

22  Wall.  123.  ment  —  upon  which  he  founds  his  unwar- 

"  They  hold  this  as  a  matter  of  law,  as  ranted  inference  — that  "it  does  not  ap- 

to  sufficiency  as  well  as  to  competency  ;  pear  from  the  report  of  that  case  whether 

then,  as  a  matter  of  law,  they  could  not  the  first  carrier  was  paid  the  price  agreed 

have  held,    as  was  held   in   the  Circuit  upon  ["  agreed  upon  ;  "  then  there  M>a.s  an 

Court  case,  that  the  same    facts   would  "  agreement "  or  contract.   "Agreed  upon," 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      175 

I.  P.  Co.^  is  not  a  case  of  much  authority  ;  and,  as  it  is  flatly  op- 
posed to  the  holding  of  the  Supreme  Court  in  Railroad  Co.  v. 
Pratt,^  that,  had  it  been  taken  to  the  Supreme  Court  of  the  United 
States,  it  would,  on  the  authority  of  the  latter  case,  have  been 
reversed. 

It  will  thus  be  seen  that  almost  the  uniform  actual  holding 
of  the  cases  in  this  country,  wiiich  are  usually  cited  as  being  op- 
posed to  the  English  cases,  are  in  conformity  with  them ;  nearly 
all  of  them,  in  effect,  holding,  as  was  held  in  Muschamp  v.  Lan- 
caster Ry.,^that  where  goods  are  received  by  carriers  marked  for  a 
destination  beyond  the  terminus  of  their  own  immediate  line,  and 
the  carriers  charge  a  through  rate  for  the  carriage,  whether  the 
freight  is  to  be  paid  at  one  end  of  the  through  route  or  the  other, 
these  are  circumstances  which  raise  an  inference,  or,  as  convert- 
ible terms,  are  prima  facie  evidence  of  one  entire  through  contract. 
In  so  holding  as  they  do,  they  hold  in  strict  conformity  with  Mus- 
champ V.  Lancaster  Ry.*  and  with  the  other  English  cases. 

But  Muschamp  v.  Lancaster  Ry.,^  has  another  feature  in  it 
which  has  escaped  general  observation,  to  which  we  will  now 
refer.  It  appears,  then,  in  this  case,  by  the  statement  of  facts 
and  by  the  pleadings,  that  the  shipper  delivered  the  goods  for 
transportation  as  implied  by  the  marks,  and  as  assented  to  in  the 
conversation  that  took  place  on  the  goods  being  received  for  trans- 
portation, not  only  along  the  lines  of  railway  from  Lancaster 
(the  place  of  shipment),  to  the  terminus  of  the  entire  railway 
route  in  Derbyshire,  but  "  to  be  left  at  the  Wheatsheaf,  Bart- 
low,  near  Bakewell,  Derbyshire,  a  place  about  eight  miles  wide  " 
of  the  last  of  the  connecting  railways.     The  contract  then  with 

between  whom  ?  and  for  what  ?J  for  trans-  practice,  and  whether  j)uid  at  Potsdam  or 

portation  over  the  whole  route."     Not  only  at  Boston  was  tmwiportant.     This  prac- 

is  it  expressly  stated  in  the  report  of  Rail-  tice  had  been  continued  for  years,  and  the 

road  Co.  v.  Pratt,  22  Wall.,  at  p.  132,  that  juiy  had  the  right  to  hold  the  contract  to 

the  through  freight  agreed  upon  in  the  one  be  the  same,  without  reference  to  prepay- 

case  as  in  the  other  was  not   paid  in  ad-  ment  or  postpayment.     The  jury  were  jus- 

vance,  but  it  also  appears   that  the    Su-  tified   in   inferring  that  w-here   a   carrier 

prenie   Court   treated   as  immaterial   the  fixes  a  price  for  transportation   over  the 

fact  at  which   end  of  the  through  route  whole   route,    that   he   makes   the  entire 

the  agreed  through  rate  was  to  be  paid ;  contract  his  own.   One  who  carries  simply 

and  this,  too,  in  the  very  paragraph  in  over  his  own  line,  and  thence  forwards  bj' 

the   case   from  which  the   Circuit   Court  other   lines,    would   ordinarily,    the  jury 

judge   quotes.       The    following    extracts  may  say,  make  or  collect  his  own  charges 

from  the  report  of  the  case  (at  p.  132)  and    leave    the    remaining   charges  to  be 

show  both  of  these  facts  :  "  Graves  testi-  collected  by  those  performing  the  remain- 

fied  that  he  was  the  station-master  at  Pots-  ing  service.     Receipt  of  the   entire   pay 

dam,  and  that  the  cars  were  billed  from  afiords   a  fair  presumption   of  an  entire 

Potsdam  to   Boston  via  Concord,  as  per  contract." 
bill ;  that  the  price  agreed  upon  was  not  i  1  McCrarj',  312. 

paid  in  advance,  but  it  might  have  been.  2  22  Wall.  123. 

.  .  .   Again,  a  specific  price  was  agreed  '  8  M.  &  W.  421. 

upon  for  transportation   over  the   whole  *  Ibid. 

route.     This  was  in  accordance  with  the  5  Ji/id, 


176  COMMENTARIES   ON   SALES.  [BOOK   III, 

whomsoever  made,  was  for  the  transportation  of  the  goods  from 
Lancaster,  one  of  the  termini^  to  the  Wheatsheaf,  Bartlow,  the 
other  of  the  termini,  at  which  latter  place  the  goods  were  to  be 
received,  and  the  freight  for  the  entire  through  route  (which  was 
the  only  contract  made,  expressed  or  implied)  was  then  and  there 
to  be  paid.  If  this  does  not  show  an  express  or  implied  contract 
to  transport  the  goods  from  Lancaster  to  the  Wheatsheaf,  then  it 
is  next  to  impossible  to  conceive  what  would  make  such  a  contract 
with  a  railway  company  to  carry  goods,  even  where  the  entire  car- 
riage of  the  goods  is  to  be  on  their  own  immediate  line.  That 
there  was  a  contract  in  the  case  is  assented  to  by  all.  That  being 
so,  then  the  only  contract  was  for  the  carriage,  for  the  one  entire 
consideration  for  the  contract,  from  the  place  of  shipment  to  the 
place  of  ultimate  destination  of  the  goods,  as  fixed,  not  only  by 
the  marks,  but  by  the  other  surrounding  facts  and  circumstances, 
i.  e.,  from  Lancaster  to  the  AVheatsheaf,  Bartlow.  Then,  with 
whom  was  the  contract  made  ?  Either  with  the  first  company  or 
with  no  one.  Why  ?  Because  there  was  no  undertaking  with 
the  shipper  by  any  other  party  than  the  first  company  to  take  tlie 
goods  to  Bartlow  at  all.  Suppose  the  goods  had  arrived  at  the 
terminus,  in  Derbyshire,  of  the  last  connecting  railway,  and  this 
railway  had  refused  to  incur  the  risk  of  carrying  the  goods  fur- 
ther, —  as  clearly,  in  this  country,  they  might  well  do,  —  no  action 
against  them  would  lie  for  the  non-delivery  of  the  goods  at  Bart- 
low, for  they  had  never  contracted  to  carry  them  there.  On  the 
face  of  the  case,  no  action  would  lie  against  any  special  carter  for 
not  taking  them  from  the  railway  terminus  in  Derbyshire  to  Bart- 
low, for  the  only  contract  which  was  made  in  the  case  with  the 
first  company  would  be  performed  by  the  goods  being  sent  to  Bart- 
low by  any  carter,  and  no  special  carter  was  in  any,  the  most  in- 
direct, way,  a  party  to  the  contract  at  all.  The  only  implication 
from  the  terms  of  the  contract  would  clearly  seem  to  be  that  for 
one  entire  through  rate,  to  be  paid  by  the  shipper's  consignee  on 
the  arrival  of  the  goods  at  the  Wheatsheaf,  Bartlow,  the  first  and 
only  contracting  company  undertook  to  carry  the  goods  not  only 
over  the  different  lines  of  railway,  but  further  to  Bartlow,  eight 
miles  from  the  railway  ;  when,  on  tiieir  delivery  there,  having  per- 
formed the  whole  of  the  only  contract  which  was  made  with  ref- 
erence to  the  goods,  they  would  have  the  right  to  demand  and 
receive  the  one  through  rate  for  the  transportation  of  the  goods 
between  the  two  originally  designated  termini. 

We  think  it,  then,  clear,  that  if  in  this  country  it  is  held,  as  it 
so  generally  is,  that  receiving  goods  by  a  railway  designated  for 
shipment  to  another  point  on  a  connecting  line,  for  which  one 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      177 

entire  sura  is  paid  or  to  be  paid,  implies  a  contract  with  the  re- 
ceiving company  for  the  whole  route ;  a  fortiori^  it  dues,  when 
the  undertaking  to  carry,  and  the  one  payment  to  be  received 
therefor,  is  specifically  for  a  point  off  the  line  of  railway  which 
may  require  the  employment  of  a  special  conveyance  to  reach.^ 
Such  a  case  would  be  similar  to  that  of  sending  a  telegram  for 
transmission  over  a  number  of  connecting  lines,  for  delivery  at  a 
point  remote  from  the  lines,  and  an  entire  payment,  made  or  to  be 
made,  from  the  receiving  point  to  the  ultimate  point,  including  the 
charge  for  a  special  messenger  from  the  railway  to  such  point. 
The  entire  contract  here  clearly  would  be  with  the  receiving 
company,  and  if  they  failed  to  take  the  necessary  steps  to  trans- 
mit the  message  not  only  over  the  telegraph  lines,  but  to  the 
ultimate  point  of  payment  and  destination,  an  action  would  well 
lie  against  them  for  their  breach  of  contract.  This,  in  effect,  is 
Muschamp  v.  Lancaster  Ry.,^  which,  as  we  have  shown,  though  so 
generally  treated  in  this  country  as  establishing  some  new  and 
doubtful  principle,  is,  judged  by  the  cases  in  which  it  is  so  treated, 
as  Avell  as  by  the  well-established  principles  of  law  applicable  to 
the  case,  undoubtedly  well  decided.  We  will  now  examine  the 
cases  in  this  country  which  are  considered,  with  the  English 
cases,  to  be  in  antagonism  to  the  State  and  Federal  cases  we  have 
examined. 

Illinois,  as  we  have  already  seen,  from  the  reference  in  Michi- 
gan Central  R.  R.  Co.  v.  My  rick  ,3  is  one  of  the  States  in  which 
the  law  is  stated  to  be  held  as  in  England.  In  Illinois  Central 
R.  R.  Co.  V.  Copeland,*  where  the  railroad  company  sold  tickets 
and  checked  baggage  from  Chicago  to  St.  Louis,  the  court  held 
that  they  were  liable  as  common  carriers  over  the  whole  route,  no 
matter  how  many  intervening  railways  there  may  have  been ;  the 
presumption  from  the  check  and  ticket  being,  that  they  were  run- 
ning in  connection  with  such  railways.  They  say,  "  It  can  make 
no  difference,  we  apprehend,  whether  the  passengers  and  baggage 
changed  cars  or  not.  The  passengers  can  rely  on  their  tickets 
and  checks,  and  hold  the  Illinois  Central  accountable  for  loss  or 
damage.  We  think  the  evidence  is  strong  enough  to  imply  a 
special  undertaking  by  the  defendant,  to  carry  this  passenger  and 

1  On  this  ground  Muschamp  v.  Lan-  and  the  goods  were  lost  before  they  were 

caster  Ry.,  8  M.  &  W.  421,  simply  follows  so  conveyed  by  the  connecting  carter.     So 

Hyde   v.   Trent  Nav.   Co.,    5  T.    K.    389  that,  on  this  ground,  the  doctrine  in  Mus- 

(a.  d.   179.3),    in   which   latter   case   the  champ  v.  Lancaster  Ry.,  8  M.  &  W.  421, 

carriers  were  made  liable  for  a  loss  of  the  is  far  from  novel, 
goods  after  their  own  immediate  transport  '^  8  M.  &  W.  421. 

of  the  goods  had  ended,  inasmuch  as  they  ^  107  TJ.  S.  10-2. 

had  made  a  charge  for  cartage  from  their  *  24  HI.  332. 

warehouse    to    the    consignee's   premises, 

VOL.  II.  12 


178 


COMMENTARIES   ON    SALES. 


[book   III. 


his  baggage  through  from  Chicago  to  St.  Louis,  and,  pro  hac  vice, 
the  connecting  road  was  the  defendants'  road."  With  reference 
to  the  holding  of  the  English  cases,  they  say :  "  We  are  inclined 
to  yield  to  the  force  of  the  reasoning  of  the  English  courts,  on 
principles  of  public  convenience,  if  no  other,  and  to  hold,  when  a 
carrier  receives  goods  to  carry,  marked  for  a  particular  place,  he 
is  bound  to  carry  to,  and  deliver  at  that  place.  By  accepting  the 
goods  so  marked,  he  impliedly  agrees  so  to  do,  and  he  ought  to  be 
answerable  for  the  loss." 

It  was  held  in  Illinois  Central  R.  R.  Co.  v.  Cowles,i  where  the 
connecting  company  received  goods  from  the  first  company,  and 
gave  a  receipt  for  them,  that  they  were  liable  for  their  loss  on  their 
own  road.  The  words  "  to  be  forwarded  by  the  Illinois  Central  R. 
R.  Co.,"  in  a  receipt  for  goods  "  for  J.,  Wheeling,  Virginia,"  was 
held,  in  Illinois  Central  R.  R.  Co.  v.  Johnson,^  to  be  an  express  con- 
tract for  the  carriage  and  delivery  of  the  goods  to  the  designated 
point.  The  court  said  :  "  As  to  the  liability  of  the  defendant  to 
transport  these  goods  to  Wheeling,  there  can  be  no  doubt.  In  the 
case  of  the  Illinois  Central  R.  R.  Co.  v.  Copeland,^we  held,  when  a 
carrier  receives  goods  to  carry,  marked  for  a  particular  place,  he  is 
bound  to  carry  to  and  deliver  at  that  place.  It  is  only  on  an 
agreement  implied  from  the  mark  or  direction  on  the  goods,  and 
accepting  them  so  marked,  that  the  liability  arises.^  Much  more 
is  he  bound  when  he  undertakes  expressly  to  carry  and  deliver."  ^ 


1  32  111.  116. 

2  34  111.  389. 

3  24  111.  338. 

*  liadue  V.  Griffith,  25  N.  Y.  364. 
•  5  The  case  of  Toledo,  &c.  Ry.  Co.  v. 
Merriman,  52  111.  123,  is  one  of  the  con- 
struction of  a  written  contract,  which  was 
of  so  ambiguous  and  contradictory  a  char- 
acter as  to  be  open  to  almost  any  construc- 
tion. While,  on  the  face  of  the  contract, 
the  railway  company  purported  to  e.K- 
empt  themselves  from  lialiility  after  goods 
shipped  by  them  were  delivered  to  a  con- 
necting carrier,  they  received  the  goods  for 
transportation  to  a  place  beyond  their  own 
terminus;  issued  for  them  what  they  them- 
selves designated  a  "  through  freight  con- 
tract," and  in  their  conditions  they  de- 
clared that  "the  responsibility  of  this 
company  as  a  common  carrier,  under  this 
bill  of  lading,  is  to  commence  on  the 
removal  of  goods  from  the  depot,  on  the 
cars  of  the  company,  and  to  terminate 
when  unloaded  from  the  cars  at  the  place 
of  delivery."  And  it  was  admitted  that 
the  company  were  at  the  time  engaged  in 
the  business  of  shipping  goods  to  points 
beyond  their  own  terminus  ;  that  in  ship- 
ping through  freight  they  generally  sent 
it  through  in  the  same  cars,  and  did  not 


change  it  at  the  terminus  of  their  own 
line.  The  defence  was  that  they  were  not 
liable  for  a  loss  happening  beyond  the 
terminus  of  their  road.  But  the  court 
held,  sustaining  the  verdict  of  the  jury, 
that  they  were  liable.  Breese,  C.  J.,  in 
delivering  the  unanimous  judgment  of 
the  court,  .said  :  "This  defence  is  utterly 
groundless,  as  the  receipt,  or  bill  of  lad- 
ing, shows  upon  its  face  it  was  a  '  through 
freight  contract,'  and  it  was  in  proof  by 
the  defendants'  agent  that  freight  received 
by  this  company  as  through  freight  was 
never  unloaded  or  delivered  at  their  ter- 
minus, but  forwarded  on  to  its  place  of 
destination  in  the  cars  in  which  it  was 
received.  It  is  idle,  then,  for  the  defend- 
ants to  claim  this  was  not  a  through  con- 
tract, and  that  their  liability  did  not 
extend  beyond  the  terminus  of  their  own 
road.  The  defendants  must  perform  their 
contract,  or  show  some  valid  excuse  for 
non-performance.  None  is  shown  in  this 
case.  The  plaintifTs  right  to  recover  the 
value  of  his  goods  cannot  be  questioned. 
This  the  jury  liave  allowed  him.  We  see 
no  reason  to  disturb  their  vei-dict,  and  the 
judgment  therefore  must  be  affirmed."  As 
intimated,  we  think  the  pro]>er  construc- 
tion of  the  contract  is  one  of  considerable 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OP  GOODS.      179 

There  was  an  express  contract  in  Illinois  Central  R.  R.  Co. 
V.  Frankenburg,^  exempting  the  company  from  liability  beyond 
their  own  line,  which  was  held,  three  of  the  judges  dissent- 
ing, to  relieve  the  company  from  liability  beyond  their  own  line. 
We  see  no  ground  in  the  case  for  the  dissenting  judgments,  more 
particularly  as  the  freight  was  only  paid  to  the  terminus  of  the 
defendants'  line. 

It  was  sought,  in  The  People  v.  The  Chicago  &  Alton  R.  R.  Co.,^ 
to  compel  a  railroad  company  to  receive  goods  for  transportation 
beyond  the  terminus  of  their  road,  but  the  court  held  it  had 
no  such  power.3  In  Chicago  &  N.  W.  Ry.  Co.  v.  Montfort,*  the 
court  say :  "  The  doctrine  of  this  court  is,  when  goods  are  deliv- 
ered, marked  to  a  particular  place,  and  beyond  the  terminus  of 
the  line  of  the  railroad  company  receiving  the  goods,  the  re- 
ceiving company  are  bound  to  carry  the  goods  to  the  place  of  des- 
tination ;  that,  to  this  extent,  is  their  undertaking  at  the  common 
law,  but  that  by  express  ac/reemetit  they  may  limit  their  liability 
to  their  own  route  and  to  its  terminus."  If  we  really  find  a  case 
decided  in  Illinois  in  which  it  is  actually  held  that  it  is  not  com- 
petent for  the  carrier  to  show,  by  the  facts  and  circumstances  of 
the  case,  that  in  a  contract  to  take  goods  received  marked  for 
a  destination  beyond  the  terminus  of  his  own  immediate  line, 
it  could  be  imjjlied,  from  such  facts  and  circumstances,  that  he 
merely  contracted  to  convey  them  to  his  terminus  as  a  carrier, 
and,  there  as  a  forwarder,  deliver  them  to  another  line  for  further 
conveyance,  then  we  will  find  what  we  think  is  very  bad  law.  We 
have  already  clearly  shown  that  the  English  cases  hold  no  such 
doctrine  as  this,  and  that  numerous  cases  in  this  country  which 
have  been  assumed  (to  a  great  extent  from  the  loose  expressions 
many  of  them  contain)  to  hold  a  doctrine  contra  to  that  of  the 
Elnglish  cases,  are  in  the  strictest  harmony  with  them.  But  there 
are  many  of  them  —  well-decided  cases,  we  think  —  which  are  not 
in  harmony  with  what  is  above  stated  as  being  the  doctrine  of  the 
Supreme  Court  of  Illinois.  However,  as  we  have  seen  in  so  many 
cases,  the  terms  "  express  "  contract, "positive"  contract,"  "  spe- 
cial "  contract,  are  so  often  used  in  a  manner  not  critically  correct, 
and  in  such  a  very  indefinite,  uncertain  way,  it  is  just  possible 
that  the  Illinois  court  meant  no  more  than  to  say  that  where  a 
railroad  company  received  goods  for  shipment,  marked  for  a  des- 
tination beyond  the  terminus  of  their  own  immediate  line,  and  in  so 
receiving  them  there  was  nothing,  expressly  or  impliedly,  to  show  a 

doubt ;    but   we   further   think    that  the  2  55  m,  95. 

judgment  of  the  court  is  sustainable  on  '  Chicaj;o  &  N.    W.    Rj'.    Co.   v.  The 

the  doctrine  of  contra  proferentem,  at  least.  People,  56  111.  36.^,  is  to  the  same  effect. 
1  54  111.  88.  *  60  111.  175. 


180 


COMMENTARIES   ON    SALES. 


[book   III. 


more  limited  contract,  it  would  be  presumed  that  the  contract 
with  the  receiving  company  was  to  convey  the  goods  to  the 
marked  destination  for  which  they  had  received  them.  More  than 
this,  we  think,  is  not  in  accordance  with  the  English  cases,  nor 
with  the  mass  of  the  well-decided  American  cases.i 

The  actual  holding  in  Chicago  &  X.  W.  Ry.  Co.  v.  Montfort  - 
sustaining  the  finding  of  the  jury  in  the  matter,  is,  that  the  ship- 
per of  goods  so  marked  was  not  affected  by  a  notice  not  brought 
to  his  knowledge,  containing  restrictions  and  conditions  to  which 
he  had  not  given  his  assent,  and  which,  it  was  therefore  held, 
formed  no  part  of  the  contract  under  which  the  goods  were  shipped. 
But  in  United  States  Express  Co.  v.  Haines,^  where  the  receipt 
stated  that  the  carriers  undertook  to  forward  a  package  of  money 
"  to  the  nearest  point  of  destination  reached  by  this  company,"  and 
then  deliver  it  to  another  carrier  to  be  forwarded ;  the  plaintiff 
claimed  that  he  never  assented  to  the  limitation  of  the  liability  of 
the  company,  and  that  he  did  not  know,  when  he  took  the  receipt, 
that  it  contained  any  such  stipulation.  The  jury  having  found 
for  the  plaintiff,  the  court  disapproved  of  the  finding.* 


1  The  expression  in  the  case,  too,  that 
such  "is  theii"  undertaking  at  common 
law,"  we  think  is  not  a  hajjpy  one.  As 
properly  admitted  in  the  Illinois  cases 
themselves,  the  common-law  liability  of  a 
carrier,  independent  of  contract,  is  simply 
for  the  safe  transportation  of  goods  over 
his  own  immediate  line.  His  liability, 
then,  to  carry  goods  over  a  connecting 
line  solely  arises  from  contract,  express 
or  implied  ;  and,  in  the  construction  of 
the  contract,  all  the  facts  and  circum- 
stances must  be  considered.  Therefore, 
while  a  sender  of  goods,  in  shipping  them 
by  a  railway,  marked  for  a  particular  des- 
tination, thereby  implies,  in  so  delivering 
them,  that  he  expects  them  to  be  carried 
to  their  designated  destination ;  prima 
facie,  it  is  im})lied,  when  the  carrier  re- 
ceives thein  so  marked,  and  undertakes 
to  carry  them,  and  nothing  further  ap- 
pears, that  his  undertaking  to  carry  them 
is  in  respect  to  the  designated  place  to 
which  they  are  to  be  carried.  And  while, 
on  the  one  hand,  this  implication  may  be 
strengthened  by  an  entire  through  rate 
being  charged,  or  by  other  circumstances 
which  have  that  tendency,  as  in  Mns- 
champ  V.  Lancaster  Ry.,  8M.  &  W.  421; 
on  the  other  hand  it  is  open  to  be  weak- 
ened or  entirely  destroyed  by  proof  of  pay- 
ment of  carriage  for  the  carrier's  own 
immediate  portion  of  the  route  only,  by 
usage,  or  by  otiier  facts  and  circumstances 
connected  with  the  case,  by  which,  ex- 
pressly or  impliedly,  it  appears  that  the 


contract  of  the  parties  was  other  than  for 
a  conveyance  of  the  goods  by  the  receiving 
carrier  over  the  entire  route. 

2  60  111.  175. 

3  67  111.  137. 

*  In  doing  so  they  said  :  "  This  is  one 
of  the  questions  of  fact  submitted  to  the 
consideration  of  tlie  jury,  but  we  are  not 
entirely  satisfied  with  their  finding.  From 
a  careful  review  of  the  evidence  it  seems 
difficult  to  reach  any  other  conclusion  than 
that  aj)pellee  knew  of  and  assented  to  the 
limitation  contained  in  the  receipt.  He 
was  expressly  told,  before  he  sent  the 
money,  the  company's  lines  extended  no 
farther  than  Atchison,  and  at  that  point 
it  wouM  be  delivered  to  the  Overland 
Stage  Co.  to  be  forwarded.  This  was 
enough  to  put  him  on  imiuiry  as  to  the 
character  and  extent  of  the  undertaking 
on  the  part  of  appellant,  and  if  he  did  not 
in  fact  read  the  contract,  he  was  certainly 
guilty  of  inexcusable  neglect  in  that  re- 
gard, and  especially  is  this  so  in  view  of 
the  fact  that  he  is  shown  to  be  a  man  of 
large  business  experience.  The  neglect 
to  read  the  receipt  could  be  more  readily 
excused  had  it  appeare<l  he  was  unaccus- 
tomed to  such  transactions.  This  is  not 
a  case  where  the  company  silently  re- 
ceived a  package  marked  to  a  point  be- 
yond the  termination  of  its  lines.  The 
facts  repel  the  idea  that  the  company,  by 
its  action,  induced  the  consirfnor  to  believe 
it  would  carry  the  package  beyond  the  ter- 
minal points  reached  by  its  own  means  of 


i 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OP  GOODS.      181 

In  Milwaukee  &  St.  Paul  Ry.  Co.  v.  Smitli,^  the  question  came 
up  in  reference  to  a  contract  made  and  to  be  performed  in  the 


coiiveycmce.  The  agent  expressly  told  him 
the  company  had  no  facilities  of  its  own 
for  conveying  the  package  beyond  Atchi- 
son, and  it  would  Ihere  have  to  be  trans- 
ferred to  another  carrier.  It  seems  almost 
impossible,  from  the  evidence  in  the  rec- 
ord, to  resist  the  conclusion  appellee  knew 
appellant  was  contracting  only  to  carry 
the  package  to  Atchison,  and  consequently 
that  its  liability  might  be  so  limited.  If 
so,  he  is  bound  by  his  agreement,  and  ap- 
pellant is  in  no  way  responsible  for  the 
delay  that  occurred  in  the  transmission  of 
the  package  to  its  destination."  Indepen- 
dent of  this,  the  damages  had  been  assessed 
on  a  wrong  basis,  and  the  verdict  was  set 
aside.  But  the  court  required,  in  event 
of  another  trial,  that  the  jury  should  be 
instructed  as  above.  And  see  Adams  Ex- 
press Co.  V.  Haynes,  42  111.  89,  where  it 
was  held,  that  if  a  common  earlier  gives  a 
receipt  for  goods,  containing  provisions 
limiting  the  common-law  liability  of  the 
company,  and  the  shipper  accepts  the  re- 
ceipt, with  a  full  knowledge  of  its  terms, 
and  intending  to  assent  to  the  restrictions 
contained  in  it,  it  becomes  his  contract 
as  fully  as  if  he  had  signed  it  ;  but  the 
simple  delivery  of  the  receipt  to  the 
shipper  is  not  conclusive  upon  him. 
Whether  he  had  knowledge  of  its  terms, 
and  assented  to  its  restrictions,  is  for  the 
jury  to  determine  as  a  question  of  fact, 
upon  eviilence  aliunde,  and  all  the  cir- 
cumstances attending  the  giving  the  re- 
ceipt are  admissible  in  evidence,  to  enable 
the  jury  to  decide  that  fact.  The  same 
question  arose  in  Field  v.  Chicago  &  R.  I. 
R.  R.  Co.,  71  111.  458,  where  the  court, 
sitting  as  a  jury,  found  that  the  shipper 
had  notice  of  the  limitation  of  the  liability 
of  the  company  to  their  own  road.  The 
Supreme  Court,  in  sustaining  this  finding, 
said  :  "  We  are  asked  to  reverse  the  judg- 
ment on  the  facts  alone,  and  to  say  the 
court,  sitting  as  a  jury,  found  against  the 
facts,  —  gave  judgment  against  the  evi- 
dence. This  court  has  often  held,  where 
a  trial  is  had  by  the  court,  as  to  the  facts, 
the  court  stands  in  the  place  of  the  jury, 
and  the  decision  will  be  reversed  or 
affirmed  by  the  same  rules  which  govern 
when  the  facts  are  tried  by  a  jury.  Ambs 
V.  Honore,  24  111.  122;  Eastman  v.  Brown, 
32  111.  .53.  And  it  was  emphatically  said 
in  Wood  V.  Price,  46  III.  435,  that  the 
same  force  and  effect  should  be  given  to 
the  finding  of  a  judge  as  to  the  verdict  of 
a  jury.  The  question,  then,  made  in  this 
case,  of  the  knowledge  of  the  shipper  as  to 


the  contents  of  these  bills  of  lading,  has 
been  found  against  the  plaintiff,  —  that  he 
had  no  such  knowledge  ;  and  looking  into 
the  transaction  of  the  paj-ties,  and  the 
proof  that  these  bills  of  lading  were  in 
possession  of  the  plaintiff,  and  filled  out 
by  his  clerk,  it  was  impossible,  in  the 
very  nature  of  things,  their  contents  should 
not  have  been  known  and  well  understood 
by  the  plaintiff ;  and  it  is  in  proof  that 
the  clauses  here  complained  of  were  un- 
derstood by  the  shippers  generally  ;  and 
it  is  inconceivable  that  a  party  shipping 
eight  hundred  barrels  of  flour,  in  different 
lots,  should  not  have  knowledge  of  them. 
It  is  past  reasonable  belief.  Were  a  jury 
sitting  in  the  case,  and  this  testimony  be- 
fore them,  and  the  surrounding  circum- 
stances, they  might  have  refused  to  give 
credence  to  the  statements  of  plaintiff  and 
his  clerk  [that  they  had  no  knowledge  of 
the  stipulations],  and  we  could  not  have 
interfered,  for  there  were  facts  existing 
which  the  jury  were  bound  to  take  into 
consideration,  sufficient  to  outweigh  such 
statements.  The  court,  sitting  as  a  jury, 
has  considered  all  these,  and  we  cannot 
say  the  finding  is  against  the  evidence." 
Again  :  "The  doctrine  of  this  court  is,  as 
found  in  the  numerous  cases  decided,  that 
when  railroad  companies,  as  common  car- 
riers, receive  goods  marked  for  a  particular 
place,  they  are  bound,  hy  the  common  law, 
to  deliver  at  that  place  ;  but  they  may  re- 
strict their  liability  by  a  contract,  fairly 
and  understandingly  made,  and  when  so 
made,  if  in  the  form  of  a  bill  of  lading  or 
otherwise,  and  the  terms  understood  and 
accepted  by  the  shipper,  it  becomes  the 
contract  of  the  parties,  and  that  is  this 
case.  By  the  common  law,  and  the  deci- 
sions of  this  court  in  conformity  there- 
with, the  railroad  comjiany,  defendant, 
were  bound  to  deliver  this  flour  in  New 
York,  to  John  Beck  &  Co.,  to  whom  it 
was  consigned,  by  the  contract  with  the 
shipper,  appearing  in  the  form  of  a  bill 
of  lading.  The  terms  and  conditions 
were  known  to  the  shipper,  and  accepted 
by  him.  Their  liability  was  restricted  to 
their  own  line,  and  for  this  they  were  com- 
petent to  contract.  The  court  has  found 
the  terms  and  conditions  of  these  bills  of 
lading  were  understood  and  accepted  by 
the  shipper.  This  being  so,  in  the  lan- 
guage of  the  court  in  Adams  Express  Co. 
V.  Haynes,  42  111.  89,  it  became  the  con- 
tract of  the  plaintiff  the  same  as  if  he  had 
signed  it.  This  fact  has  been  submitted 
to  the  court,  sitting  as  a  jury,  and  decided, 


1  74  111.  197. 


182  COMMENTARIES   ON   SALES.  [BOOK   III. 

State  of  Wisconsin.  The  question  as  it  arose  in  Muschamp  v. 
Lancaster  Ry.,^  and  in  the  other  English  cases  on  the  subject, 
seemed  never  to  have  been  adjudicated  upon  in  that  State.  The 
facts  as  they  are  stated  in  the  case  were,  that  the  appellants  were 
a  railway  company ;  their  line  extending  from  Milwaukee  to  La 
Crosse.  It  was  the  ordinary  course  and  general  business  usage  of 
appellants  to  receive  goods  at  Milwaukee  from  consignors,  to  be 
carried  on  their  railway,  marked  and  directed  to  places  beyond 
La  Crosse,  and  off  their  line  of  railway,  and  to  carry  the  goods  to 
La  Crosse,  and  there,  as  forwarders,  to  deliver  to  other  carriers 
(steamboat  owners,  which  involved  the  unloading  and  delivery 
of  the  goods  from  the  railway  cars),  for  forwarding  to  or  towards 
the  places  to  which  the  goods  were  directed.  It  also  appears  from 
the  statements  in  Conkey  v.  Milwaukee  &  St.  Paul  Ry.  Co.'-^  on 
which  case  the  Illinois  court  relied,  that  it  was  a  part  of  this  gen- 
erally-known usage,  on  the  railroad  delivering,  as  forwarders,  to  the 
next  company,  to  collect  from  the  latter  their  own  charges  for  the 
carriage  from  Milwaukee  to  La  Crosse.  Three  lawyers  from  Wis- 
consin swore,  that,  under  the  common  law,  the  appellants  would 
not  be  liable  as  carriers  after  delivery  of  the  goods  to  the  con- 
necting steamer. 

We  are  quite  of  the  opinion  with  the  Supreme  Court  of  the 
United  States,^  on  the  question  as  to  the  construction  of  a  con- 
tract on  principles  of  common  law,  that  the  courts  of  any  one  State 
administering  that  system  of  law  are  quite  as  competent  to  judge 
as  to  the  proper  common-law  construction  of  the  contract  as  those 
of  another ;  and  are  not  concluded  (the  lex  fori  and  the  lex  loci 
contractus  being  the  same)  by  a  mistake  in  the  construction  of  the 
contract,  by  the  court  in  the  place  of  the  contract.  The  court  in 
the  place  of  the  contract  may  rectify  its  own  mistakes,  or  reverse 
its  own  wrongly-decided  judgments.  A  fortiori,  a  court  in  an  in- 
dependent jurisdiction  is  not  concluded  by  cases  which  it  may 
hold  are  wrongly  decided.  As  we  have  been  intimated,  we  think 
that  where  the  lex  loci  contractus  is  to  govern,  the  application  is  as 
to  the  statutes  that  are  there  in  force,  or  the  particular  system  of 

and  we  cannot  say  the  finding  is  wrong."  decisions   on   the   subject  as   have   those 

If,    in   these   different   references    to   the  other  courts,  which,  as  we  have  shown, 

"common  law,"  the   "common-law   lia-  have   so   incorrectly   assumed    that    they 

bility,"  &c.,  anything  more  is  implied,  as  were  holding  cmtra  to  the  English  deci- 

it  seems  to  be,  than  as  to  what  presump-  sions,    when   really   their    own    decisions 

tions  will  arise,  hi  the  principles    of  the  were  in   the  strictest  harmony  with   tlie 

common  law,  from  facts  and  circumstances,  very    cases   the    doctrine    of  which    they 

as  in  Muschamp  v.  Lancaster  Ry.,  8  M.  &  purported  to  disapprove. 
W.  421,  to  show  the  particular  contract  ^  8  M.  &  W.  421. 

in  the  given  case  ;    then,  we  think,  the  2  31  -wjg,  at  p.  630. 

Supreme  Court  of  Illinois  has  as  much  8  See  supra,  p.  171. 

misapprehended  the  result  of  the  English 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OP  GOODS.      183 

law,  and  not  as  to  the  right  or  wrong  construction  of  a  system  of 
law  common  alike  to  the  places  of  forum  and  contract.  And  we 
are  of  the  opinion  that,  on  the  principles  of  the  common  law  which 
govern  the  decisions  of  the  courts  alike  in  Wisconsin  and  Illinois, 
there  is  nothing  in  the  soundly-decided  cases  on  the  subject  in 
England  or  America  that  is  at  all  inconsistent  with  the  holding 
in  Milwaukee  &  St.  Paul  Ry.  Co.  v.  Smith ,^  that  the  appellants 
ceased  to  be  liable  as  carriers  after  they  had,  in  accordance  with 
a  well-established  and  general  usage,  unloaded  the  goods  of  the 
appellee  at  La  Crosse  ;  regularly  delivered  them  "  as  forwarders," 
to  the  connecting  carriers,  and  received  their  pay  for  their  freight 
of  the  goods,  from  Milwaukee  to  La  Crosse.  But  we  are  very  far 
from  agreeing  with  Dixon,  C.  J.,  in  the  Wisconsin  case,^  where  he 
put  it,  as  entirely  independent  of  contract,  that  in  England,  under 
what  he  calls  the  rule  in  Muschamp's  Case,  the  first  carrier  is  lia- 
ble, "  as  such,  for  the  safety  of  the  goods  throughout  the  transit 
and  until  they  are  delivered  at  the  place  of  destination."  The 
first  carrier  is  liable,  "  as  such,"  beyond  his  own  immediate  route, 
if  he  "  specially  "  conti*act  so  to  be ;  and  where  he  receives,  for 
carriage,  goods  marked  specifically  for  a  destination  beyond  his 
own  immediate  route,  this  fact  alone  is  some  evidence  from  which 
a  jury  may  infer  a  contract  to  carry  those  goods  to  that  place  for 
which  they  are  so  marked  for  carriage.  And  this  inference  may 
be  strengthened,  on  the  one  hand,  as  in  Muschamp  v.  Lancaster 
Ry.,^  and  in  other  cases,  English  and  American,  by  their  being 
charged  one  through  rate,  paid  or  to  be  paid,  for  such  entire  car- 
riage ;  or  by  other  circumstances,  as  in  those  cases  which  show 
the  entirety  of  the  contract ;  or,  on  the  other  hand,  weakened,  or 
absolutely  rebutted,  as  in  so  many  other  equally  as  well-decided 
cases,  where  there  is  an  express  agreement  limiting  the  liability 
to  the  carrier's  own  immediate  route;  or  where  the  circumstances 
so  imply,  such  as  from  the  payment  made  or  to  be  made  for  the 
carrier's  own  portion  of  the  route  only;  his  discharging  the  goods 
at  his  own  terminus ;  delivering  them,  as  a  forwarder,  over  to  the 
next  carrier,  taking  a  receipt  therefor  ;  and  the  existence  of  a  well- 
established  and  generally  known  usage  to  act  as  a  carrier  over  his 
own  route  alone,  receiving  payment  therefor,  and  acting  thereafter 
simply  as  a  forwarder.  As  we  have  shown  by  our  very  full  re- 
view of  the  cases,  both  English  and  American,  the  whole  mass  of 
them,  with  a  few  insignificant  cases,  are  in  the  most  perfect 
accord  with  these  principles. 

Equally  incorrect  with  Dixon,  C.  J.,  is,  we  think,  the  Illinois 

1  74  111.  197.  8  8  M.  &  W.  421. 

2  31  Wis.  at  p.  636. 


184  COMMENTARIES   ON   SALES.  [BOOK   III. 

court,  in  Mihvaukce  &  St.  Paul  Ry.  Co.  v.  Smith,'  where  they 
distinguish  between  what  they  call  the  present  rule  of  the  common 
law  in  England,^  and  "  the  received  doctrine  among  the  courts  of 
this  country;"  intimating  that,  in  the  latter,  "the  carrier  was 
not  responsible  beyond  his  own  route,  except  upon  his  special 
undertaking  so  to  be  liable;"  but  that,  in  England,  the  carrier 
was  bound  to  carry  and  deliver  the  goods  marked  for  a  particular 
place  beyond  his  own  route,  without  such  special  undertaking. 

The  matter  in  England,  as,  in  this  investigation  we  have  so 
often  shown,  is,  and  particularly  so  in  Muschamp  v.  Lancaster,^ 
put  simply  on  the  ground  of  the  special  undertaking  in  the  par- 
ticular case ;  the  contract  being  implied  in  that  case  from  the 
receipt  of  the  goods  marked  for  carriage  to  the  designated  place, 
at  one  entire  payment,  and  from  the  other  facts  and  circumstances 
in  the  case.  But  all  this  was  simply  matter  from  which  a  con- 
tract might  be  inferred,  it  being  admitted*  that  "In  cases  like 
the  present,  particular  circumstances  might  no  doubt  be  admitted 
to  rebut  the  inference  which,  prima  facie,  must  be  made,  of  the 
defendants  having  undertaken  to  carry  the  goods  the  whole  way.'' 

And  it  is  an  utter  mistake,  as  we  have  shown,  to  suppose  that 
the  law  as  laid  down  in  the  Muschamp  Case  is  at  all  counter  to 
the  law  in  England  as  previously  decided.  We  look  ui)on  the  law 
as  decided  in  England,  some  fifty  years  before  the  decision  in 
the  Muschamp  Case,  substantially  the  same  as  in  that  case. 
Thus  in  Hyde  v.  The  Trent  Nav.  Co.,^  decided  a.  d.  1793,  the 
defendants,  although  making  a  separate  charge  for  carriage  on 
the  river  Trent  and  on  their  own  canal  ;  a  separate  charge  which 
they  received  for  its  proprietor  for  carriage  on  a  connecting 
canal,  as  well  as  a  separate  charge  for  storage  in  a  warehouse, 
which  they  did  not  own  ;  and,  besides,  they  made  a  charge  for 
cartage,  which,  the  plaintiffs  knew,  was  for  an  independent 
carter;  yet  the  court  held,  quite  in  accordance  with  the  holding 
in  the  Muschamp  Case,  that  they  were  liable  as  carriers  for  a 
loss  by  an  accidental  fire  in  the  warehouse ;  the  implication  from 
the  facts  being  that  the  conveyance  by  the  carter  was  made  by 
the  defendants  a  part  of  their  contract  of  carriage.^ 

1  74  111.  at  p.  200.  defendants'  argument  there  must  be  two 
'  Datino  from  a.  d.  1841.  contracts  in  all  cases  where  goods  are  sent 
^  8  M.  &  W.  421,  425,  et  seq.  by  a  coach  or  a  wagon  ,  but  I  think  the 
*  As  was  said  by  Lord  Abinger,  C.  B.,  same  argument  tends  to  establish  the  ne- 
at p.  429.  cessity  of  three,  —  one  with   the  carrier, 
^  5  T.  R.  389.  another  with  the  inn-keeper,  and  a  thud 
^  The  language  of  Buller,  J.,  at  pp.  396,  with  the  porter.     But  in  fact  there  is  but 
397,  separated   from  its   context,  is  very  one  contract.     There  is  nothing  like  any 
much  more  open  to  misunderstanding  than  contract  or  even  communication  between 
that  of  Rolte,  B.,  in  the  Muschamp  Case,  any  other  person   than  the  owner  of  the 
Buller,  J.,  there  says  :   "  According  to  the  goods    and    the    carrier.      The   carrier   is 


PART  11.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OP  GOODS. 


185 


The  case  of  Erie  Ry.  Co.  v.  Wilcox  ^  is  one  where  the  judgment, 
reversing   the   judgment  of   the  court  below,  was    by  a  divided 


bound  to  deliver  the  goods,  and  the  per- 
son who  actually  delivers  them  acts  as 
the  servant  of  the  carrier.  .  .  .  The  dif- 
ferent proprietors  may  divide  the  piotits 
among  themselves  lu  any  way  they  choose, 
but  they  cannot  by  their  own  agreement 
with  eacli  other  exonerate  themselves  from 
their  liability  to  the  owner  of  the  goods. 
The  carriers  have  the  direction  of  the 
goods,  and  are  responsible  for  them  until 
they  are  delivered  to  the  owner  ;  and  here 
the  defendants  insisted  on  receiving  a  cer- 
tain sum  of  money  for  the  whole  expense 
of  carrying  and  delivering,  including  the 
identical  charge  of  cartage,  before  they 
would  take  the  goods  into  their  vessel. 
If  the  carrier  and  porter  were  to  make 
separate  contracts  with  the  owners  of  the 
goods  the  latter  would  have  the  optiou  of 
sending  his  own  carts  to  bring  away  his 
goods ;  wiiereas  here  the  defendants  put 
the  goods  into  the  Duke  of  Bridgewater's 
warehouse  at  once,  in  order  to  send  them 
afterwards  to  the  plaintitls  by  a  pai-ticular 
cart  of  their  own."  This  last  is  specially 
applicable  to  the  Muschamp  Case,  as  there 
the  goods  were  deliverable  by  the  carriers 
at  Bartlow,  in  Derbyshire,  "a  place  about 
eight  miles  wide  of  the  railway  ; "  and, 
under  the  implied  contract,  the  shipper 
had  a  right  to  have  the  goods  forwarded 
to  that  ultimate  point,  where,  as  per  the 
terms  of  the  only  contract  he  had  made, 
the  entire  througli  freight  was  to  be  paid. 
The  matter  is  admirably  put  (entirely 
clear  of  the  usual  mistakes  made  one  way 
or  the  other  in  the  cases)  by  the  Supreme 
Court  of  Illinois,  Chief  Justice  Scott  de- 
livering the  unanimous  judgment  of  the 
court,  in  Adams  Express  Co.  v.  Wilson, 
81  HI.  339.  The  matter  is  intelligently 
treated  as  simply  one  ol  contract,  the 
facts  in  the  case  showing  what  the  par- 
ticular contract  was.  .  It  was  quite  com- 
petent for  the  parties  to  have  made  a  dif- 
ferent contract ;  but  the  question  was,  as 
in  all  the  English  cases,  simply  what  was 
the  contract  winch  was  made  in  the  par- 
ticular case.  The  judgment  atfirmed  the 
finding  of  the  .jury,  and  the  decision  of 
the  court  in  the  court  below.  We  set  out 
the  judgment,  which  is  brief  and  to  the 
point,  as  follows  :  — 

"  Plaintiffs  delivered  a  package  of 
goods  to  the  agent  of  the  defendant  at 
Flora,  to  be  carried  from  thence  to  De- 
catur in  this  State.  It  was  lost,  and  this 
suit  is  to  recover  its  value.  There  is  no 
controversy  that  the  yjackage  was  deliv- 
ered to  the  company,  nor  a.s  to  its  value. 


No  receipt  was  taken  when  the  package 
was  delivered  to  the  defendant.  It  was 
given  in  charge  of  the  messenger  on  the 
train,  and  charges  paid  to  Decatur.  The 
defence  sought  to  be  interposed  is,  that 
defendant's  line  terminated  at  Altamonl  ; 
and  having  at  that  ])oint  delivered  the 
package  to  another  carrier  to  be  trans- 
ported to  its  destination,  it  is  insisted  de- 
fendant's liability  w'as  at  an  end.  We  do 
not  think  the  position  assumed  can  be 
maintained.  Clearly,  the  undertaking  of 
defendant  was  a  contract  for  through 
transportation.  Plaintiffs  wanted  the 
package  sent  to  Decatur,  and  defendant, 
vnth  a  full  knoioledge  oj  this  fact,  accepted 
the  usual  charges  for  carrying  it  to  that 
point.  No  doubt  it  would  have  been  com- 
petent for  the  company,  by  special  con- 
tract [this  is  objectionable,  if  it  is  used 
as  synonymous  with  the  term  '^express 
contract,"  which  is  em[)loyed  in  the 
next  Illinois  case  we  stale  J  with  the 
shippers,  to  have  limited  its  liability 
to  safely  deliver  the  package  to  another 
carrier  at  the  nearest  point  reached  by 
its  lines  to  the  point  of  destination ;  but 
it  made  no  efibrt  to  do  so  in  that  or 
any  other  particular.  U.  S.  Express.  Co. 
V.  Haines,  67  111.  137.  For  an  adequate 
consideration,  in  hand  paid,  the  company 
assumed  the  responsibility  of  a  common 
carrier,  unrestricted  by  any  conditions, 
and  It  must  be  held  to  be  bound  by  its 
engagement.  One  of  the  plaintiffs  was 
upon  the  same  train  that  carried  the 
package  from  Flora.  He  was  about  to 
place  it  in  the  baggage  car  when  defend- 
ant's agent  suggested  it  was  express  mat- 
ter.  After  some  conversation,  he  con- 
sented it  might  be  sent  by  express.  It 
may  be  fairly  said  defendant's  action  in- 
duced the  belief  in  the  iniud  of  plaintiff 
that  the  company  would  engage  to  carry 
the  package  to  Decatur.  No  other  point 
was  mentioned.  Had  he  been  told  the 
company  would  only  carry  it  to  Alta- 
mont,  it  is  more  than  probable  he  would 
not  have  intrusted  the  package  to  defend- 
ant at  all.  But  he  wanted  it  sent  through 
to  Decatur,  where  he  was  going  himself 
to  receive  it.  Having  accepted  the  usual 
charges  on  the  package  to  the  point  of  des- 
tination, without  exacting  any  limitations 
of  their  duties  from  the  shippers,  we  must 
regard  the  undertaking  of  drjcndanl  as  an 
engagement  for  through  transportation; 
and  nothing  short  of  the  act  of  God,  or 
the  public  enemy,  could  relieve  it  of  its 
duty  to  perfoiTu  its  contract  as  a  commoa 


1  84  111.  239. 


186  COMMENTARIES   ON   SALES.  [BOOK   III. 

court.  We  think  that,  on  the  facts,  the  finding  and  decision 
of  the  court  helow  were  so  obviously  wrong,  that  we  look  in 
vain  in  the  actual  holding  in  the  case,  in  the  Supreme  Court,  for 
any  reasonable  ground  ui)on  which  any  dissent  from  the  judgment 
can  be  based.  But  while  we  think  the  decision  itself  is  correct, 
we  find  again  the  unfortunate  use  of  the  term  "  express  con- 
tract;" as  though  the  inference,  which  fairly  results  from 
receivino-  goods  represented  orally,  or  by  their  address,  as  be- 
ing for  transportation  to  a  designated  point,  that  they  are  so 
received  or  accepted  to  be  carried  there,  as  in  Adams  Express 
Co.  V.  Wilson  ^  can  only  be  rebutted  by  an  express  contract.  If 
it  were  so  put  in  the  English  cases,  we  could  quite  understand 
why  in  so  many  of  the  cases  in  this  country  which  are  not  only 
well  decided,  but  are  in  the  strictest  harmony  with  the  English 
cases  themselves,  the  latter  are  disapproved.  But  the  English 
cases  simply  hold  that  that  is  some  evidence  of  the  fact,  warrant- 
ing such  an  inference ;  but,  as  is  usual  in  any  contract  resulting 
or  arising  from  mere  implications  or  inferences,  such  evidence 
may  be  affected  by  other  surrounding  facts  and  circumstances,  so 
as,  on  the  one  hand,  that  such  evidence  may  either  strengthen 
such  inference  as  to  make  it  absolutely  conclusive ;  or,  on  the 
other  hand,  weaken  or  entirely  destroy  it.  Or,  in  effect,  accept- 
ing the  suggestions  of  the  Missouri  case,^  the  great  mass  of  the 
American  cases  on  the  subject  can  be  harmonized  with  the  well- 
decided  English  cases,  by  simply  considering  the  use  of  the  terms 
"  special  contract,"  "  positive  contract,"  "  express  contract,"  in 
the  former,  as  merely  expressing  contract,  either  express  or 
implied.^ 

carrier.     The  receipt  given  for  the  goods  der  similar  facts  and  the  same  principles, 

after    the    loss    occurred    in    no    manner  is  surely  not  well  founded, 
affected  defendant's  responsibility,  or  re-  i  81  111.  339. 

lieved    it   from   any   of    its    conunon-law  2  Qited  supra,  p.  159,  n.  2. 

duties   u}ider   the    original    undertaking,  3  The  following,  from  the  judgment  in 

and  we  have  not  deemed  it  necessary  to  Erie  Ry.  Co.  v.  Wilcox,  84  111.  at  p.  240, 

consider  any  of  the  conditions  contained  with  this  explanation  and   qualification, 

in  it.     Wliatever  conditions  and   limita-  is  quite  accurate   and  applicable   to   the 

tions  it  may  have  contained  were  not  as-  well-decided  cases  on  the  subject  in  Eng- 

sented  to  by  the  shippers,  either  before  or  land  and  America.     Without  it,  it  is  in- 

at  the  time  the  goods  were  delivered  to  accurate    and    of    doubtful     application, 

defendant,   and   hence   do  not  affect  the  "Whatever  contrariety  there  may  be  in 

carrier's   liability  one  way  or  the  other,  the  decisions  of  courts  in  respect  to  the 

The  judgment  must  be  affirmed."      The  duties  and  obligations  of  con)mon  carriers, 

facts  in  Adams  Express  Co.  v.  Wilson,  Si  it  is  settled,  as  firmly  as  any  legal  propo- 

111.  339,  are  essentially  the  same,  in  their  sition  can  be,  such  carrier  is"  not  bound  to 

leading  particulars,  as  those  in  Muschamp  assume  responsibility  for  the  transporta- 

V.  Lancaster  Ry.,  8  M.  &  W.  421;  and  we  tiou  of  goods  beyond  the  terminal  points 

doubt  very  much  if  there  is  this  day  any  reached  by  its  own  conveyances.      It  is 

court  in  the  Unite<l    States,  of  anything  optional   whether   the    carrier   will    take 

like  fair  intelligence,  which  would  hold  upon  itself  the  enlarged  responsibility  of 

counter  to  Adams   Express  Co.  v.  Wilson,  making   the  connecting   carriers  its  "own 

And  if  not,  their  adverse  criticism  of  Mus-  agents    for  the   transportation    of    goods 

champ  V.  Lancaster  Railway,  decided  un-  rather   than   the   agents  of  the   shipper. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OP  GOODS. 


187 


The  Illinois  Appellate  Court,  in  Chicago  &  N.  W.  R.  R.  Co.  v. 
Church,^  express  themselves  more  carefully  on  the  subject  than 
is  usual  with  the  courts  and  text  writers  in  this  country.  The 
question  involved  in  the  case  was  as  to  the  power  of  a  railroad 
corporation  to  limit  its  liability,  under  the  Illinois  Statute,^  with 
respect  to  goods  shipped  for  a  point  beyond  its  own  terminus. 
The  court  said :  "  We  are  inclined  to  hold  that  the  common-law 
liability  contemplated  by  the  Statute  is  the  common-law  liability 
which  attaches  to  the  common  carrier /rom  the  fact  of  the  contract 
to  carry.  That  it  does  not  apply  to  a  case  like  this  where  the 
carrier  is  under  no  obligation  at  common  law  to  undertake  to 
carry  goods  beyond  its  own  line.^  No  common-law  obligation 
attaches  to  carry  safely  according  to  the  rules  of  the  common 
law  until  there  is  a  contract  for  carriage  actually  made  to  carry 
beyond  appellant's  line.  Then  and  not  till  then  does  the  common- 
law  liability  attach  to  safely  carry  such  distance.     It  is  true  it  has 


Although  tlie  cases  elsewhere  are  not  har- 
monious, the  rule  adopted  and  uniformly 
adhered  to  in  this  State  is,  the  acceptance 
of  goods  delivered  for  carriage,  marked  to 
a  point  beyond  the  terminus  of  the  car- 
rier's lines,  will  be  construed,  prima  facie, 
as  a  contract  for  through  transportation. 
Notwithstanding  the  goods  may  be  thus 
marked,  the  carrier,  by  express  [?  or  im- 
phed]  contract,  may  limit  its  obligation 
to  carry  safely  over  its  own  lines,  or  only 
to  points  reached  by  its  own  carriages,  and 
for  safe  storage  and  delivery  to  the  next 
carrier  in  the  route  beyond.  A  clause  in 
the  receipt  given  to  the  owner  for  the 
goods  restricting  the  carrier's  obligations 
in  this  respect,  if  understandingly  assented 
to  by  the  shipper,  will  as  effectually  bind 
him  as  though  he  had  signed  it.  What 
the  contract  between  the  shipper  and  the 
carrier  is,  is  a  matter  of  evidence.  Illinois 
Central  R.  R.  Co.  v.  Copeland,  24  111.  332; 
The  Same  v.  Johnson,  34  111.  389  ;  The 
Same  v.  Frankenburg,  54  111.  88  ;  The 
People  V.  Chicago  &  Alton  R.  R.  Co.,  55 
111.  95;  Chicago  &  N.  W.  Ky.  Co.  v.  Mont- 
fort,  60  111.  179;  United  States  Express 
Co.  V.  Haines,  67  111.  137." 

"  What  the  contract  between  the  shipper 
and  the  carrier  is,  is  a  matter  of  evidence  !  " 
Perfectly  true  !  Why,  then,  (1)  on  the 
one  hand,  should  the  important  fact,  that 
tiie  goods  being  received  for  carriage  to  a 
named  point,  raises  an  inference  on  the 
part  of  the  part}'  so  receiving  them  for 
carriage,  that  he  receives  them  for  such 
carriage  to  such  named  point,  be  elimi- 
nated from  the  facts  which  go  to  show 
what  tlie  specific  contract  is?  And,  (2) 
on  the  otlier  hand,  why  should  any  other 
facts  from  winch,  connected  with  that, 
it  can  be  shown  that  the  contract  to  be 


implied  from  all  of  such  facts  was  to  carry 
the  goods  onh'  a  [lortion  of  the  distance 
to  the  named  jioint,  and  there,  simply  as 
forwarders  and  as  agents  for  the  shippers, 
to  deliver  them  to  some  one  else,  to  carry 
them  for  the  shippers  to  the  named  ])oint, 
be  any  the  more  elin^inated  from  the  "evi- 
dence" which  goes  to  show  "what  the 
contract  between  the  shipper  and  the  car- 
rier is  ?"  We  think  that  in  the  first  case 
put,  as  in  the  last,  the  answer,  quite  too 
clear  for  the  existence  of  even  a  scin- 
tilla of  doubt,  is,  that,  as  "  what  the 
contract  between  the  shipper  and  the  car- 
rier is,  is  a  matter  of  evidence,"  all  such 
evidence,  being  material  and  substantial, 
is  admissible  ;  and  tliat  the  construction 
of  the  contract  of  a  carrier,  from  the  facts 
and  circumstances  surrounding  the  par- 
ticular case,  is  no  more  difficult,  and  is 
unaffected  by  any  other  rules  than  those 
ordinarily  applicable  to  the  construction 
of  contracts.  The  English  decisions  on 
this  subject  are  the  result  simply  of  the 
a2:)plication  of  such  rules  ;  and,  as  we  have 
shown  in  our  analysis  of  such  cases,  there 
is  nothing  whatever  in  Muschamp  v.  Lan- 
caster Ry.,  8  M.  &  W.  421,  or  in  the  New 
York  case  (see  siqjra,  p.  116)  decided  in 
the  same  way  concurrently  with  it,  that 
introduces  any  principle  ajiplicable  to  the 
construction  of  a  carrier's  contract  which 
is  not,  in  effect,  as  old  as  the  law  of  con- 
tracts itself,  or  which,  as  far  as  it  can 
analogously  be  applied,  could  not  be  ap- 
plied to  the  construction  of  any  other  con- 
tract as  well  as  to  that  of  a  carrier. 

1  12  111.  App.  17. 

'•!  H.  S.  of  1877,  ch.  114,  §  82. 

3  As  will  be  seen,  infra,  wc  rather 
question  the  correctness  of  this. 


188  COMMENTARIES   ON   SALES.  [bOOK    III. 

been  held  by  the  Supreme  Court  of  this  State  that  if  the  carrier 
received  the  goods  marked  to  a  destination  beyond  its  own  line, 
that  then  the  presumption  of  the  law  is  that  it  was  a  contract 
of  carriage  to  the  place  marked  on  the  goods,  and  all  the  com- 
mon-law liability  attaches.  .  .  .  The  reception  of  the  goods  so 
marked  is,  as  was  said  by  the  court  in  Erie  R.  R.  v.  Wilcox,^ 
inimd  faeie  evidence  of  through  carriage ;  subject,  it  must  he 
presumed,  to  he  controlled  hy  a  different  contract.  The  taking 
possession  of  the  goods  for  shipment  and  the  bill  of  lading  may 
be  one  and  the  same  transaction,  and  the  hill  of  lading  may  ex- 
plain the  prima  facie  case  of  through  carriage  resulting  from  the 
reception  of  the  goods  marked  '  through.''  And  in  this  case,  ac- 
cording to  the  agreement,  "we  think  it  does.  The  receipt  shows 
that  the  appellant  was  only  to  carry  the  goods  to  the  end  of  its 
own  line,  and  there  deliver  them  to  another  to  be  transported  to 
North  Anson,  Me. ;  expressly  exempting  itself  from  liability  be- 
yond its  own  line,  and  the  appellees  took  and  accepted  such 
receipt  with  full  knowledge  of  its  provisions,  and,  we  think,  pre- 
sumably intending  to  accept  its  coyiditions  as  the  contract.  The 
simple  delivery,  however,  of  the  receipt  to  the  shipper  would  not 
be  conclusive  upon  him  as  to  the  contracts  contained  in  it." 

While  we  tliink,  very  much,  although  not  exactly,  witli  the 
court,  that  the  railroad  corporation,  under  the  statute,  could  not 
"  by  any  stipulation  or  limitation  expressed  in  the  receipt  limit 
their  liability "'  —  called  in  the  statute  their  "  common-law 
liability  "  —  for  the  non-delivery  of  the  goods  "  to  the  place  to 
which  the  goods  are  to  be  transported ;  "  yet,  we  think,  that, 
connected  with  the  fact  of  the  shipper's  knowledge,  the  receipt 
or  bill  of  lading  might  be  given  in  evidence  to  show  what,  ab 
initio^  was  the  nature  of  the  contract  that  was  actually  made  be- 
tween the  parties.  This  would  not  be  a  reliance  on  a  restriction 
in  the  receipt,  but  would  go  to  show  that  tlie  carriers  had  never 
contracted  to  carry  the  goods  beyond  their  own  terminus.  How- 
ever this  may  be,  we  think  it  perfectly  clear  that,  independent  of 
the  statute,  the  Illinois  Appellate  Court  has  well  laid  down  the 
principles  of  the  common  law  applicable  to  these  cases,  and 
particularly  so,  in  their  avoidance  of  the  usual  terms,  "  special 
contract,"  "  positive  contract,"  "  express  contract ;  "  the  doubtful 
or  absolutely  incorrect  use  of  which  terms  has  caused  not  a  little 
of  the  uncertainty  which  has  been  cast  about  so  many  of  the 
cases  in  this  country,  which,  actually,  on  the  facts  in  them,  have 
been  well  decided. 

We  would  further  observe  on  the  the  above  case,  that  the  stat- 

1  84  111.  239. 


PART  ir.J   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      189 

ute  itself  seems  to  be  the  outcome  of  the  mistake  made  by  the 
Supreme  Court  of  Illinois  in  holding,  as  in  effect  they  do,  that 
there  is  a  common-law  liability,  independent  of  contract,  on  rail- 
way companies,  to  carry  goods,  as  common  carriers,  beyond  their 
own  line,  where  they  have  received  them  marked  for  such  a  point, 
and  from  wliich  liability  they  can  only  relieve  themselves  "  by  ex- 
press  contract^  The  Court  of  Appeal  has  more  properly  held,  in 
accordance  with  the  views  we  have  expressed  so  constantly  in 
this  investigation,  that  that  is  a  fallacy  ;  that  —  as  we  have  shown 
the  English  cases  hold  —  it  is  a  liability  arising  only  out  of  con- 
tract;  and,  therefore,  that  all  the  facts  and  circumstances  — the 
receipt  of  the  goods  for  carriage  marked  for  a  specific  destina- 
tion being  simply  one  of  them  —  must  be  considered  in  order  to 
decide  what  the  particular  contract  is.  This  being  so,  then,  as 
there  was  no  "  common-law  liability,"  except  so  far  as  a  liability 
arose  by  the  particular  contract  made  in  the  case,  it  was  com- 
petent for  the  defendants,  notwithstanding  the  statute,  to  show, 
by  the  receipt  or  bill  of  lading  and  the  accompanying  facts,  the 
knowledge  and  the  implied  assent  of  the  shipper  to  its  terms,  and, 
therefore,  what  the  contract  actually  was.  And  as,  by  the  very 
terms  of  the  contract,  the  defendants  only  undertook  as  carriers 
to  convey  the  goods  to  their  own  terminus,  and  then  to  forward 
them,  they  had  not,  in  even  apparent  contravention  of  the  terms 
of  the  statute,  to  avail  themselves  "  of  the  stipulations  or  limita- 
tions expressed  in  the  receipt "  to  relieve  them  from  a  liability 
which  they  had  never  assumed  ;  the  liability,  whatever  it  was  in 
the  case,  being  simply  a  contract  liability,  and  not  such  an  one  as 
is  implied  by  a  '•  common-law  liability,"  which  may  exist  inde- 
pendently of  contract.  While,  in  this  way,  we  reach  the  same 
result  as  the  Appellate  Court,  we  think  we  make  the  construction 
of  the  statute  clearer  than  they  have  done,  and  show  tiiat  the  stat- 
ute, according  to  its  express  phraseology,  applies  to  cases  to  carry 
and  deliver  goods  as  well  beyond  a  railway  company's  own  imme- 
diate line  as  within  it;  a  point  which  the  Appellate  Court  at  first 
deny  and  then  put  only  as  a  possibility,  —  "  It  may  be,"  etc.  The 
construction  of  the  statute,  we  think,  then  is,  that  where  an  im- 
plied contract  is  made  by  a  railroad  company  to  carry  goods  be- 
yond their  own  terminus,  they  cannot  relieve  themselves  of  their 
liability  by  a  stipulation  or  limitation  in  a  receipt  which  has  not 
formed  a  part  of  the  contract.  Of  course,  they  could  not  do  so  in 
the  face  of  an  express  contract ;  and,  therefore,  where,  from  the 
receipt  of  goods  marked  for  shipment  to  a  point  beyond  their  own 
terminus  and  from  any  other  facts  and  circumstances,  an  implied 
contract  has  arisen  for  tiiem  to  carry  the  goods  safely,  as  common 


190  COxMMENTARIES   ON   SALES.  [bOOK   III. 

carriers,  they  cannot,  under  the  statute,  relieve  themselves  from 
their  liability  by  such  a  stipulation  or  limitation  in  the  receipt, 
which  has  not  formed  part  of  the  contract.  The  difficulty  under 
the  statute  is  evidently  the  result  of  the  mistake  in  the  Supreme 
Court,  Avhich  the  Appellate  Court  rectify ;  showing,  as  they  do, 
that  the  other  facts  and  circumstances  of  the  case  may  "  explain 
the  prim d  facie  case  of  through  carriage  resulting  from  the  recep- 
tion of  the  goods  marked  '  through.'  "  The  case  we  think  a  most 
valuable  one  to  show  the  correctness  of  what  we  have  been  seek- 
ing to  impress  throughout  this  very  full  investigation  of  a  most 
important  subject ;  which,  while  in  England  is  in  so  clear  and 
simple  a  position,  in  this  country  has  been  involved  in  the  most 
apparently  inextricable  confusion. 

The  case  of  Bennett  v.  Filyaw  ^  is  very  often  cited  as  being  in 
harmony  with  the  English  cases,  and  in  principle  it  is  so,  although 
it  is  not  on  the  exact  question  involved  in  them.  In  this  case 
goods  were  shipped  near  Mount  Yernon  by  a  steamer  running  be- 
tween that  place  and  the  city  of  Apalachicola,  and,  in  a  suit  for 
the  loss  of  the  goods,  it  was  claimed  that  no  place  of  delivery  for 
the  goods  had  been  shown.  Very  much  in  effect  as  in  Muschamp 
V.  Lancaster  Ry.,^  the  court  below  instructed  the  jury  that  if  they 
were  satisfied  from  the  evidence  that  the  steamer  was  bound  for 
Apalachicola,  they  might  infer  from  that  fact,  in  the  absence  of 
an  express  agreement  upon  the  subject,  that  the  plaintiff's  goods 
were  to  be  delivered  in  Apalachicola,  as  alleged  in  the  declaration, 
and  refused  to  instruct  them  that  no  terminus  of  the  voyage  in 
question  was  proved.  The  Supreme  Court  sustained  the  court  be- 
low both  as  to  the  instruction  given,  and  as  to  that  which  was 
overruled.^ 

^  1  Fla.  403.  steamboat  as  alleged  in  the  declaration. 
'^  8  M.  &  W.  421.  Whether  this,  with  other  evidence  ad- 
3  In  doing  so  they  say :  "  It  was  duced,  was  sufficient  to  satisfy  the  jury 
clearly  proved  on  the  trial  below,  as  ap-  that  these  boxes  of  tobacco  were  sliipped 
pears  from  the  testimony  brought  up  by  for  Apalachicola,  as  the  terndnus  of  the 
the  bill  of  exceptions,  that  the  plaintiff  in  voyage  as  alleged,  was  clearly  a  matter  of 
error  was  the  master  of  the  steamboat  in  fact  which  it  was  their  provinfe  to  deter- 
question,  plying  to  and  from  the  city  of  mine,  and  not  one  as  to  which  the  court 
Apalachicola,  on  the  Apalachicola  River,  should  charge  them.  If  they  erred  in  re- 
in the  year  1842,  in  answer  to  an  inter-  gard  to  this  question  of  fact,  the  remedy 
rogatory  to  that  effect  to  which  no  excep-  of  the  defendant  below  was  by  motion  for 
tion  was  taken.  It  was  further  testified  a  new  trial  on  that  ground.  We  there- 
by one  of  the  witnesses,  that  certain  boxes  fore  think  that  the  court  below  did  not 
of  tobacco,  of  the  crop  of  1842,  belonging  err  in  overruling  this  instruction,  nor  do 
to  the  defendant  in  error,  were  taken  by  we  consider  that  it  erred  in  giving  the  last 
the  latter,  the  same  year,  to  his  lower  excepted  to.  The  instruction  last  men- 
place,  for  the  purpose  of  being  shipped  to  tioned  would  seem  to  be  to  the  effect,  that  if 
Apalachicola,  and  these  boxes  were  spoken  it  appeared  that  the  steamboat  was  bound 
of  by  the  same  witness  as  having  been  for  Apalachicola,  and  there  was  no  evi- 
sent  off  to  A])alachicola  at  the  time  before  dence  that  the  same  was  bound  also  for 
mentioned.  It  is  fully  proved,  too,  that  some  intermediate  point,  so  as  to  contra- 
these  boxes  were  shipped  on  board   said  diet  that  conclusion,  then  the  jury  might 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OP  GOODS.      191 

There  is  also  a  case  in  Illinois,  decided  a.  d.  1840,  and  therefore 
prior  to  Muschamp  v.  Lancaster  Ry.,^  and  decided  in  principle  very 
much  in  the  same  way.  It  was  a  case  where  a  bill  of  lading  was 
given  for  goods  shipped  by  the  defendant's  steamer,  addressed  to 
the  plaintiffs  at  Peoria,  for  which  a  bill  of  lading  was  given  for 
the  goods  to  be  delivered  at  Peoria,  the  shippers  "  paying  freight 
for  the  said -goods  at  the  rate  of  $1  per  hundred."  In  the  margin 
was  written,  "  With  privilege  of  reshipping  on  any  good  boat."  The 
goods  having  been  lost  from  a  connecting  steamer,  the  defendant 
claimed  he  was  not  liable  for  the  loss.  The  court  below  having 
found  for  the  plaintiff,  the  judgment  was  sustained.  The  Su- 
preme Court,  in  sustaining  it,  said  :  "  What  change  in  the  terms 
of  this  contract  did  the  words  '  with  privilege  of  reshipping  on 
any  good  boat,'  written  in  the  margin  of  the  bill  of  lading,  produce  ? 
Was  the  master  discharged  from  all  obligation  in  relation  to  the 
carriage  and  delivery  of  the  goods  at  Peoria,  by  merely  shipping 
the  goods  on  board  '  any  good  boat  ? '  Clearly  not.  He  was  to 
receive  freight  on  the  delivery  of  the  goods  at  Peoria,  for  trans- 
porting the  goods  the  whole  distance.  His  obligations  were  conse- 
quently coextensive  with  the  reward  he  was  to  receive.  He  could 
not  charge  freight  pro  rata,  for  the  distance  he  carried  the  goods, 
and  then  leave  the  owner  to  be  charged  for  the  remainder  of  the 
distance  such  prices  for  freight  as  the  conscience  of  the  master  of 
the  boat  on  which  the  goods  might  be  reshipped  should  see  fit  to 
demand."  '^  This  reasoning  is  equally  as  applicable  where  the  car- 
rier receives  goods  for  carriage,  marked  for  carriage  and  delivery 
beyond  his  own  immediate  terminus,  under  an  implied  contract, 
from  the  facts  and  circumstances  of  the  case,  to  carry  them  to  the 
point  designated  for  their  delivery.^  As  this  was  prior  to  the  de- 
cision of  the  much-discussed  English  cases,  with  the  views  in 

infer,  in  the  absence  of  an  express  agree-  ^  The  following,  too,  at  p.  289,  we 
ment  to  the  contrary,  that  Apalachicola  think  is  specially  instructive  :  "Had  the 
must  have  been  the  terminus  of  the  voy-  agreement  been,  that  if  the  master  should 
age  and  the  place  of  delivery.  This  ap-  reship  the  goods,  he  should  onW  receive 
pears  to  be  a  self-evident  proposition,  and  freight,  pro  rata,  for  the  distance  the 
therefore  furnishes  no  ground  for  excep-  goods  had  been  carried,  a  different  rpiestion 
tion,  if  it  were  otherwise  objectionable,  would  have  been  presented.  In  such  a 
and  we  are  satisfied  that  it  is  not."  We  case,  however,  there  can  be  no  doubt, 
should  fancy  that  no  one  would  question  that  it  would  have  been  incumbent  on  the 
the  correctness  of  this  decision,  which  is  master  to  have  forwarded,  without  delay, 
the  application  of  the  simplest  common-  to  the  owners  or  consignees  of  the  goods, 
law  principles  in  the  construction  of  the  a  new  bill  of  lading,  so  that  the  owner 
particular  contract,  and  wliich  were  no  might  have  evidence  against  the  master  of 
more  or  less  correctly  applied  than  ware  the  boat  on  wliich  tlie  goods  were  re- 
similar  principles  similarly  apjilied  in  the  shipped.  Without  notice  of  the  reship- 
well-decided  imt  most  strangely  distorted  ment  of  the  goods,  the  owner,  in  case  of 
case  of  Muschamp  v.  Lancaster  Ry.,  8  M.  non-delivery,  would  not  know  on  whom  to 
&  W.  421.  call  for  redress,  nor  how  to  search  for  his 

1  8  M.  &  W.  421.  goods." 

2  Dunseth  v.  Wade,  2  Scam.  285. 


192  COMMENTARIES   ON   SALES.  [bOOK   III. 

Avhicli  it  SO  thoroughly  harmonizes,  without  being  the  outcome  of 
them,  it  is  the  more  significant  and  important. 

We  lind  a  very  simple  case  in  Alabama,^  practically  identical 
with  Muschamp  v.  Lancaster  Ry.,^  and  decided  in  the  same  way ; 
that  is,  decided  obviously  so  correctly  that  we  think  there  could 
be  scarcely  a  question  as  to  its  correctness.  And  yet  we  find  the 
usual  lano;uao'e :  "  The  true  doctrine,  that  which  is  most  con- 
sistent with  all  the  principles  which  govern  the  liability  and  duty 
of  carriers,  and  which  seems  to  us  required  by  the  same  necessity 
and  public  policy  upon  which  these  principles  are  founded,  is  that 
a  common  carrier  who  receives  goods  destined  for  a  place  beyond 
his  own  line  of  transportation,  not  expressly  otherwise  limiting  his 
duty  and  liability,  must  be  regarded  as  contracting  for  a  delivery 
at  the  point  of  destination."  "We  think  this,  instead  of  being  a 
"true,"  is  a  very  faLse  doctrine.  It  purports  to  be  derived,  as  a 
rule,  from  the  English  cases ;  but,  as  we  have  shown,  the  English 
cases  establish  no  such  doctrine.  The  case  itself  is  an  extremely 
simple  one,  and  can  rest  quite  well  on  its  own  merits,  without  re- 
quiring to  be  propped  up  by  any  such  unsound  principle  as  that 
by  which  it  is  sought  to  be  supported.  The  facts  show  the  very 
simplest  possible  case  of  a  contract  to  carry  the  goods  the  entire 
distance.  It  does  seem  ridiculous  that  so  much  doubt  and  mys- 
tery have  been  thrown  about  so  simple  a  matter. 

The  facts  were  that  the  plaintiff  shipped  goods  by  the  defend- 
ants' railway  for  Texarkana,  Texas,  and  received  a  receipt  or  bill 
of  lading  from  the  defendants'  agent  to  that  effect,  stating  that 
the  goods  were  received  from  the  plaintiff,  at  Troy,  for  shipment 
to  Texarkana,  Texas,  and  contained  no  conditions  or  stipulations 
whatever.  The  plaintiff  asked  to  be  allowed  to  take  the  goods  as 
baggage  usually  allowed  to  passengers,  and  offered  to  pay  for  it. 
The  agent  refused,  and  said  it  must  go  as  freight,  and  that  he 
could  pay  for  it  at  Texarkana,  and  that  it  would  reach  there  in 
three  days  or  a  week  after  plaintiff's  arrival.  The  agent  then  exe- 
cuted the  receipt,  and  plaintiff  accepted  it.  The  goods  were  lost 
after  they  had  been  transferred  to  a  connecting  line  on  the  route. 
The  jury,  under  the  instructions  of  the  court,  found  for  the  plain- 
tiff, and  the  verdict  was  sustained.  We  think  that  facts  from 
which  a  through  contract  could  be  implied  could  scarcely  be 
plainer  ;  but  it  is  equally  as  clear  that,  under  a  different  state  of 
facts,  such,  for  instance,  as  if  the  defendants  had  exacted  and 
been  paid  freight  for  their  own  portion  of  the  road  only,  a  very 
different  contract  might  have  been  implied,  and  they  would  not 

1  Mobile  &  Girard  R.  R.  Co.  v.  Cope-         2  g  M.  &  W.  421. 
land,  63  Ala.  219. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      193 

have  been  liable  even  though  there  had  been  no  express  contract 
limiting  their  contract  liability,  as  carriers,  to  their  own  route 
only. 

We  notice  in  some  of  the  Tennessee  decisions  which  purport 
to  follow  the  English  cases,  the  same  misimpression  as  to  the 
actual  holding  in  the  latter.  Carter  v.  Peck  ^  is  free  from  this  mis- 
take. There  the  plaintiff  bought  from  the  defendants,  proprietors 
of  stage  coaches  connecting  with  others,  tickets  over  the  entire 
route,  paying  for  them  in  full.  The  court  held  that  this  was  a 
contract  with  the  defendants  for  conveyance  over  the  entire  route, 
for  a  breach  of  which  the  defendants  were  liable,  no  matter  on 
what  portion  of  the  route  the  contract  was  violated.^ 

The  law  in  East  Tennessee  &  Ga.  R.  R.  v.  Nelson,-^  with  refer- 
ence to  the  duties  and  contracts  of  a  carrier,  is  correctly  laid  down. 
"  The  law  is,  that  in  the  absence  of  a  special  contract,  the  carrier 
is  bound  to  perform  his  duty,  i.  e.,  deliver  the  goods  at  their  des- 
tination, or  at  the  end  of  his  route  to  the  next  carrier,  in  a  reason- 
able time,  according  to  the  usual  course  of  his  business,  with  all 
convenient  dispatch.  And  if  the  carrier,  or  his  servant,  within 
the  scope  of  his  employment  and  duty,  enter  into  any  special  con- 
tract [which,  of  course,  may  be  either  express  or  implied]  to 
deliver,  in  any  particular  time  or  place,  even  beyond  the  terminus 
of  his  particular  route,  it  will  be  binding." 

In  East  Tennessee  &  Va.  R.  R.  Co.  v.  Rogers,*  a  receipt  was 
given  for  goods  "for  H.,  Atlanta,  ...  to  be  forwarded  "  by  the 
defendants'  road.     "  To   be   forwarded "  was  construed    "  to  be 

'  4  Sneed,  203.  portation  of  the  passenger  over  the  entire 

2  The  mere  statement  of  such  cases  is  line,  and  the  proprietors  of  the  other  por- 

sufficient  to  show  their  correctness.     The  tions  of  the  line  were  their  agents,  whom 

court  said  :    "  We  think    that  when  the  they  trusted  to  perform  that  ]>art  of  their 

defendants  received  the  plaintiffs  money,  contract  which  lay  on  the  portions  of  the 

and  gave  him  through  tickets,  they  thereby  line  owned  by  them.     If  this  view  of  the 

became   bound   for  his  transportation  on  subject  be  correct,  and  we  think  it  is,  then 

the  entire  line,  and  that  he  was  entitled  it   was   wholly   immaterial    whether    the 

to  a  strict  performance  by  the  defendants  plaintiff  knew  of  this  arrangement  or  not. 

of  their  undertaking,  or  to  recover  com-  If  the  defendants,   when  they  sold  plain- 

pensation    in    damages    for    any    breach  tiff  the  tickets,  intended  that  he  should 

thereof.      The  arrangement  between   the  risk  the  proprietors  of  the  other  portions 

defendants  and  the   proprietors  of  other  of  the  line  to  carry  him    through,   then 

portions  of  the  line  was   a   matter  with  they  should  have    so    stipulated  and  in- 

which   the   plaintiff  had   nothing  to  do.  formed  him  frankly  of  this  arrangement, 

He  was  no  party  to  that  agreement,  nor  so  tliat  he  might,  with  a  full  knowledge  of 

was  he  bound  to  look  to  any  person  for  the  facts,   have  elected  whether  he  would 

the  performance  of  the  defendants'  under-  pay  them  the  entire  fare  and  take  through 

taking  but  themselves.     If  either  party  to  tickets,  or  pay  them  oidy  for  that  portion 

that  agreement   was  guilty  of  a  breach,  of  the  line  of  which  they  were  the  pro- 

that  was  a  matter  for  adjustment  between  prietors,  and  make  his  own  arrangements 

themselves.       By   this    arrangement,  the  for   the   balance   of  the  journey.      They 

proprietors  at  each  end  of  the  line  were  assumed,  however,  to  caiTy  him  through, 

authorized  to   receive   the   fare  and  give  and  are  responsible  for  the  undertaking." 
through   tickets,   to    show  that   they  had  »  1  Coldw.  272,  276. 

undertaken  and  received  pay  for  the  trans-  *  6  Heisk.  143. 

VOL.   II.  13 


194 


COMMENTARIES   ON    SALES, 


[book   III. 


transported  or  carried,"  and  the  defendants  were  held  liable  for 
loss  of  the  goods  on  the  connecting  road,  under  what,  the  court 
held,  was  an  express  contract  to  convey  the  goods  to  Atlanta. 
But  the  head-note  of  the  case  goes  much  beyond  this.  It  is : 
"  A  carrier  receiving  goods  delivered  to  him  for  transportation, 
marked  and  destined  to  a  point  beyond  his  own  line,  undertakes, 
in  the  absence  of  an  express  agreement  to  the  contrary,  to  deliver 
the  goods  to  the  consignee."  While,  as  we  have  shown,  this  is 
not  the  rationale  of  the  case,  it  does  really  express  the  views 
of  the  court.  ^ 


1  They  say  (at  p.  146),  :  "The  Eng- 
lish courts,  with  great  unanimity,  hold 
that  the  carrier  giving  the  receipt  and 
undertaking  the  carriage  of  goods  from 
one  point  to  another,  is  responsible  for  all 
the  intermediate  routes,  unless  he  shall  by 
express  contract  limit  his  liability  to  the 
transportation  of  the  goods  only  to  the 
end  of  his  own  road."  The  court  reach 
this  conclusion  as  to  the  holding  of  the 
English  courts,  thus  (at  p.  148):  "The 
leading  case  in  England  on  this  question 
is  that  of  Muschamp  v.  The  Lancaster, 
&c.  R.  R.  Co.,  8  M.  k  W.  421,  in  which 
it  was  held  by  the  Court  of  Exchequer 
'  that  where  a  carrier  receives  goods  di- 
rected to  a  place  beyond  the  terminus  of 
his  own  route,  without  limiting  his 
responsibility  by  express  agreement,  such 
receipt  of  the  goods  so  directed  is  primd 
facie  evidence  of  an  undertaking  to  carry 
the  goods  to  the  place  where  they  are 
directed,  and  that  the  rule  applies  although 
the  place  be  beyond  the  tei-minus  of  bis 
own  usual  route,  and,  a  loss  having  oc- 
curred in  that  case  beyond  such  terminus, 
the  carrier  was  held  liable  for  such  loss.'  " 
This  quotation,  by  the  court,  is  evidently 
second-hand,  and  is,  in  part,  not  a  strictly 
accurate  statement  of  the  7im  prius  direc- 
tion of  Rolfe,  B.,  to  the  jury.  What  he 
really  did  say,  in  summing  up,  was  (at 
p.  423)  :  "That  where  a  common  carrier 
takes  into  his  care  a  parcel  directed  to  a 
particular  place,  and  does  not  bv  positive 
agreement  limit  his  responsibility  to  a 
part  only  of  the  distance,  that  is  primd 
facie  evidence  of  an  undertaking  on  his 
part  to  carry  the  parcel  to  the  place  to 
which  it  is  directed  ;  and  that  the  same 
rule  applied,  although  that  place  were 
beyond  the  limits  within  which  he  in 
general  professed  to  carry  on  his  trade  of 
a  carrier."  This  is  very  far,  even  as  it 
stands,  from  warranting  the  conclusion 
that  the  party  "undertaking  the  carriage 
of  goods  from  one  point  to  another,  is 
responsible  for  all  the  intermediate  routes, 
unless  he  shall  by  express  contract  limit  his 
liability  to  the  transportation  of  the  goods 


only  to  the  end  of  his  own  road."  Here, 
thsy  entirely  change  the  meaning  of  Rolfe, 
B.,  and  treat  what  he  says  would  be  prima 
facie  evidence  of  the  fact,  as  being  con- 
clusive evidence  of  that  fact.  Of  course, 
if  there  was  an  express  or  "  positive " 
(which  is  the  word  he  uses,  and  which  is 
less  strictly  technical  than  express,  and 
which  has  probably  led  to  the  use  of 
another  synonym,  special)  agreement  lim- 
iting the  carrier's  responsibility  to  a  par- 
ticular place,  there  would  be  no  room  for 
an  implication  in  the  matter,  as  it  is  one 
wholly  of  contract.  But,  in  the  absence 
of  such  a  contract,  then  the  taking  charge 
of  the  parcel  which  is  directed  to  a  par- 
ticular place,  is,  of  itself,  aside  of  anything 
else,  primd  facie  evidence,  that  as  the 
shipper  is  sending  it  there,  so  the  carrier 
is  to  carry  it  there.  But  this  is,  alone, 
merely  primd  fade  evidence  of  this  fact, 
which  may  be  strengthened,  as  we  have 
so  often  put  it,  by  otlier  facts  ;  or,  on  the 
other  hand,  be  weakened,  or  conclusively 
rebutted,  by  other  facts.  It  is  simply 
some  evidence  of  the  fact,  "  whence,"  a.s 
Lord  Abinger  puts  it,  "  the  jury  might 
infer  that  they  [the  carriers]  undertook  to 
carry  it  [the  parcel]  in  safety  to  that 
place."  But,  even  in  the  absence  of  a 
positive  or  express  contract  in  the  matter, 
the  acceptance  of  the  parcel  "to  be  car- 
ried on  to  a  more  distant  place,"  is  not 
conclusive  evidence  of  the  carrier's  under- 
taking to  carry  it  there.  As  Lord  Abinger 
again  put  it  (at  p.  429)  :  "In  cases  like 
the  Yi^esent,  particular  circumstances  might 
no  doubt  be  adduced  to  rebut  the  inference 
which,  primd  facie,  must  be  made  of  the 
defendants  having  undertaken  to  carry  the 
goods  the  whole  way.  The  taking  charge 
of  the  parcel  is  not  put  as  conclusive  evi- 
dence of  the  contract  sued  on  by  the 
plaintiff ;  it  is  only  primd  facie  evidence 
of  it." 

This  does  not  at  all  agree  with  the  view 
of  the  English  law  in  the  matter  which 
was  entertained  by  the  court  in  East  Ten- 
nessee &  Virginia  R.  R.  Co.  v.  Rogers,  6 
Heisk.  143,  146  ;  but,  as  we  have  so  fully 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      195 

Among  all  the  American  cases  we  have  so  far  examined,  in 
which  the  English  cases  are  noticed,  we  have  found  none  in 
which  the  holding  in  those  cases  is  so  properly  appreciated  as 
by  Chief  Justice  Waite  in  Elmore  v.  The  Naugatuck  R.  R.  Co.,^ 
and  by  the  Illinois  Appellate  Court  in  Chicago  <fe  N.  W.  R.  R. 
Co.  V,  Church ;  ^  the  reasoning  on  the  subject  in  the  Supreme 
Court  of  the  United  States  being  about  the  worst  to  be  found 
in  any  of  the  cases.  But  we  find  in  the  next  Tennessee  case 
we  examine^  a  thoroughly  correct  appreciation  of  the  law  as  it 
is  to  be  deduced  from  the  well-decided  cases  in  England  and  in 
this  country,  whether  prior,  concurrent  with,  or  subsequent  to 
Muschamp  v.  Lancaster  Ry,*  Thus,  after  quoting  Lord  Abinger's 
statement  of  Rolfe,  B.'s,  instructions  to  the  jury  in  the  latter  case, 
the  Tennessee  court  correctly  say :  "  The  extent  of  the  undertak- 
ing, however,  might  be  repelled  by  circumstances  showing  the  con- 
tract to  have  been  only  for  the  length  of  their  own  line  of  road,  as 
where  the  freight  was  only  paid  as  far  as  the  terminus  of  their 
own  road,  and  the  rest  was  to  be  collected  on  delivery."  The 
court  add,  "  though  the  contrary  has  been  held,  in  one  case  at 
least,  in  England."  Tlie  case  is  not  named,  and  we  think  the 
remark  is  the  result  merely  of  a  misunderstanding  of  what  was 
held  in  the  very  doubtfully  decided  case  of  Bristol  &  Exeter  Ry. 
Co.  V.  Collins,^  fully  considered  by  us.^ 

shown,  supra,  pp.  75-96,  it  is  the  actual  then  is  the  fair  meaning  of  the  undertak- 
holding  of  the  English  courts  ;  and,  as  we  ing  of  the  railroad  company,  in  view  of 
have  also  shown,  harmonizes  with  the  the  known  course  of  business,  and  the  at- 
ratio  decidendi  of  numerous  cases  in  this  tending  circumstances  in  any  case  of  ship- 
country  which  have  generally  been  incor-  ment  of  goods  upon  one  road  to  be  trans- 
rectly  assumed  to  have  established  a  ported  to  another  beyond  its  terminus  ? 
"  rule  "  opposed  to  that  to  be  deduced  We  think  it  can  only  be,  where  no  special 
from  the  well-decided  English  cases.  contract  is  insisted  on  limiting  the  under- 

1  23  Conn.  479  et  seq.  taking,  that  the  party  receives  it  with  the 

2  12  111.  App.  17.  obligation  to  carry  or  have  it  carried  to  its 
8  Western  &  All.  R.  R.  Co.  v.  McElwee,  destination,  and  that  the  recipient  knows 

6  Heisk.  208.  his  own  business  arrangements,  and  relies 

*  8  M.  &  W.  421.  upon  the  facilities   possessed   by  him  to 
^  7  H.  L.  Cas.  194.  comply  with  his  undertaking.     If  he  has 

*  Supra,  81  et  seq.  no  such  means  of  transmission  as  is  de- 
As  there  is  much  in  the  remainder  of  manded  by  the  shipper,  it  is  his  business 

the  judgment  of  the  Tennessee  court  which  to  notify  him  and  limit  his  contract  with 

meets  our  views  on  some  of  the  points  in-  him  to  the  extent  of  his  own  capacity  to 

volved,  we  (juote  here  fully  from  it.    Says  fulfil  it  ;  the  other  party  has  the  right  to 

Freeman,    J.,    delivering  the  unanimous  rely  on  the  party  having  the   means   of 

judgment  of  the  Supreme  Court:    "We  transmitting  the  goods  to  theirdestinatiou. 

think  the  case  of  Carter  v.  Peck,  4  Sneed,  By  the  fact  that  the  goods  are  consigned  be- 

203,  however,  is  an  emphatic  indorsement  yond  the  terminus  of  his  own  line,  he  is  no- 

of  the  i)rinciple  of  the  English  rule,  and  tified  of  ivhat  the  shipper  desires  him  to 

is  the  proper  one  in  all  such  cases.     It  is  undertake  to  do  for  him,  and  if  not  able  or 

true  in  that  case  there  was  sold  what  is  unvnlling  so  to  undertake,  it  is  but  fair 

known  as  a  through  ticket,  but  that  ivas  that  he  should  be  required  to  say  so,  and 

only  evidence   of  the   undertaking   of  the  then  the  extent  of  his  liability  be  clearly 

party,  and  such  tmdertaking  muiht  equally  understood, 
well  be  made  out  by  other  facts.     What  "  In  looking  into  the  American  cases, 


196 


COMMENTARIES   ON   SALES. 


[book   III. 


In  Louisville  &  Nashville  R.  R.  Co.  v.  Campbell,^  the  head-note 
is  :  "  Where  a  railroad  company,  without  contracting  for  restricted 
liability,  receives  goods  consigned  to  a  point  beyond  its  terminus 
but  on  the  line  of  a  connecting  route,  it  is  bound  to  deliver  them 
at  their  destination.     But  where  goods  so  consigned  are  received 


it  will  be  found  that  numerous  cases  have 
held  as  above  indicated.  In  the  case  of 
Angle  V.  Mississippi  R.  R.,  9  Iowa,  487, 
Mr.  Justice  Woodward  lays  down  the  rule 
thus :  *  We  are  clearly  of  the  opinion  that 
where  goods  are  delivered  to  a  railroad 
company,  marked  to  a  place  beyond  their 
road,  and  unaccompanied  by  any  other 
direction  but  the  mark,  the  company  is 
bound  to  deliver  according  to  the  mark, 
although  parol  evidence  is  admissible 
where  receipt  is  given  to  vary  the  con- 
tract, as  it  is  only  prima  facie  evidence 
from  the  receipt  that  they  undertook  to 
carry  the  whole  way,  and  the  company 
would  be  exempt  if  an  unvarying  usage 
to  deliver  at  the  terminus  of  their  road 
was  proved,  and  knowledge  of  such  usage 
brought  home  to  the  consignor.'  This  is 
a  correi^t  statement  of  the  rule,  with  per- 
haps the  qualification  or  explanation  that 
if  the  receipt  given  was  not  only  a  receipt 
■by  which  the  possession  of  the  goods  was 
acknowledged,  but  also  contained  an  ex- 
press contract  to  transport  to  destination, 
this  contract  would  not  be  subject  to  be 
varied  by  parol  proof,  by  reason  of  the 
fact  that  the  simple  receipt  was  found  in 
the  same  paper ;  and  then,  further,  that 
the  unvarying  usage  spoken  of  should 
not  only  be  that  the  road  receiving  was  in 
the  habit  of  delivering  to  the  other  road 
at  the  terminus  of  its  own  line,  but  that  it 
only  undertook  to  transport  as  far  as  its 
own  line,  and  charged  to  shipper  freight 
and  collected  it  from  him  alone  for  the 
transportation  on  its  own  road.  In  other 
words,  that  the  fact  that  the  receiving 
road  universally  used  the  connecting  line 
as  a  means  of  sending  the  goods  to  their 
destination  when  sent  to  points  beyond 
the  terminus,  would  not  be  evidence  to 
rebut  the  undertaking,  expressed  or  im- 
plied, on  receipt  of  the  goods,  to  carry  to 
destination,  unless  it  was  shown  that  its 
usage  was  uniform  only  to  undertake  for 
its  own  line,  and  it  received  freight  only 
for  this  service  from  the  shipper.  If  the 
receiving  road  shall  send  the  goods  on  to 
the  next  line,  and  there  receive  its  freight 
from  the  next  road,  or,  by  an  arrangement 
with  the  connecting  line,  the  freight  should 
be  collected  on  delivery,  and  pro  rata  paid 
to  the  first  road,  as  is  the  custom,  we  be- 
lieve, of  perhaps  all  roads  ;  the  last  road 
is  the  agent  of  the  first,  and  not  specifi- 
cally of  the  shipper,  and  in  that  case  is 


but  the  means  used  by  the  first  receiver 
of  carrying  out  his  contract  to  carry  or 
transport  to  its  destination.  As  said  by 
an  English  judge:  '  It  is  better  that  those 
who  undertake  to  carry  parcels  for  their 
mutual  benefit  should  arrange  matters  of 
this  kind  among  themselves,  and  should 
be  taken  each  to  have  made  the  others 
their  agents.'  We  think  this  the  sounder 
view  of  the  question,  based  on  the  general 
interests  of  trade,  and  of  those  engaged  in 
shipping  goods  by  this  almost  universal 
means  of  transportation.  It  would  be  ex- 
ceedingly hard  if  the  shipper  of  a  smaU 
but  valuable  package  at  Boston  should  be 
compelled  to  trace  the  package  from  that 
point  along  all  the  intervening  lines  over 
which  it  might  possibly  pass  in  order  to 
reach  Tennessee,  in  order  to  find  who  was 
responsible  to  him  for  his  loss. 

"It  is  said  in  argument,  however,  that 
the  books  of  each  company  would  show  the 
receipt  of  the  package.  That  may  be,  and 
is  true,  no  doubt  ;  but  then,  the  books  are 
their  own,  and  may  or  may  not  be  exhib- 
ited to  a  single  shipper,  or  may  not  pos- 
sibly show  the  truth  of  the  case.  At  any 
rate  it  would  not  be  proper  that  the  ship- 
per should  be  compelled  to  rely  on  the  evi- 
dence to  be  furnished  by  the  company 
sought  to  be  held  liable  to  sustain  his 
right.  On  the  other  hand,  it  imposes  no 
hardship  upon  the  other  roads,  because 
they  are  in  constant  communication,  in- 
terchange business,  and  the  books  of  the 
road  originally  shipping  would  show  it 
was  received  by  the  other,  and  would  be 
always  in  their  possession  and  of  ready  ac- 
cess. Thus  the  inconvenience  to  the  road 
would  be  much  less  than  to  the  single 
shipper  of  a  parcel,  who  might  never  have 
another  transaction  with  any  of  the  com- 
panies during  his  life.  All  hardship  in 
the  rule  can  be  easily  obviated  by  the  rail- 
road companies,  if  it  is  felt,  by  making  a 
special  contract,  or  giving  a  special  receipt, 
and  taking  freight  only  from  the  shipj)er 
for  their  own  line.  They  cannot  be  al- 
lowed to  have  the  advantage  of  undertak- 
ing for  their  own  benefit  to  carry  to  the 
point  of  destination,  either  expressly  or 
by  fair  implication,  and  then  escape  the 
responsibility  incident  to  the  undertaking 
when  loss  occurs."  Western  &  Atl.  R.  R. 
Co.  V.  MoElwee,  6  Heisk.  (53  Tenn.)  215 
et  seq. 

1  7  Heisk.  253. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OP  GOODS.      197 

under  a  contract  restricting  the  liability  of  the  company  as  a  car- 
rier to  their  delivery  at  its  terminus,  it  is  then  bound  to  deliver 
them  there  with  all  convenient  speed,  according  to  the  usual 
course  of  business,  to  the  next  carrier  ;  and  if  there  is  none  ready 
at  the  terminus  to  receive  the  goods  and  forward  them  along  the 
proper  route,  then  it  ought  to  retain  them  and  notify  the  owner. 
The  company  is  not  bound  in  such  case  to  transport  the  goods  be- 
yond its  terminus  upon  any  link,  however  short,  of  the  connecting 
route,  unless  its  established  usage  imply  such  an  undertaking." 
In  Railroad  v.  Stockard  ^  the  defendants  received  goods  marked, 
for  the  plaintiff,  "  Jackson,  Tennessee,"  but  failed  to'deliver  them 
there,  owing  to  their  refusal  to  deliver  them  to  a  connecting  rail- 
way company  without  payment  of  freight  and  charges,  which  the 
latter  company  refused  to  pay.  The  court  held  that  the  defend- 
ants having  received  the  goods  so  directed,  without  any  special 
contract  limiting  their  undertaking,  the  obligation  was  imposed  on 
them  to  deliver  them  to  their  destination,  and  they  would  not  be 
excused  for  their  failure  to  deliver  them  there  by  reason  of  the 
facts  alleged,  although  the  destination  of  the  goods  was  beyond 
the  terminus  of  defendants'  road.  While  these  decisions  were  ad- 
hered to,  it  was  also  held  in  Memphis,  <fec.  R.  R.  Co.  v.  Holloway,^ 
that  the  connecting  roads  were  also  liable  where  a  loss  was  caused 
by  their  negligence ;  and,  with  some  doubt,  it  was  held,  where 
goods  had  been  abstracted  from  packages,  en  route,  that  the  bur- 
den of  proof  would  be  on  the  last  line  of  the  road  to  show  that 
they,  having  received  the  packages  without  objection  from  the 
previous  line,  had  not,  by  their  negligence,  caused  the  loss.^ 

We  find  in  Angle  v.  The  Mississippi  &  Mo.  R.  R.  Co.,^  in  the 
contention  of  counsel,  the  stereotyped  misstatement  of  the  law  in 
England,  thus,  without  any  qualification  :  "  In  England  the  rule 
is,  that  a  mere  receipt  by  a  railway  company,  of  goods  marked 
and  directed  to  a  place  beyond  the  terminus  of  their  road,  makes 
them  liable,  as  carriers,  to  the  point  of  destination."  °  In  this 
case  there  was  a  written  receipt  for  the  goods  "  to  be  delivered 
in  like  good  order;"  no  place  of  delivery  being  named,  but  the 
marks  on  the  goods,  "H.  G.  Angle  &  Co.,  Cedar  Rapids,  Iowa," 
were  inserted  in  the  receipt.  The  goods  were  burnt  by  an  acci- 
dental fire,  after  they  had  been  delivered  to  a  connecting  carrier. 
In  a  suit  against  the  receiving  company,  the  court  below  held  that 

1  11  Heisk.  568.  Lea,  38,  which  are  in  accord  with  the  pre- 

2  9  Baxter  (68  Tenn.),  188.  vious  Tennessee  cases  on  the  subject. 
'  See  further  Furstenheim  v.  Memphis  *  9  Iowa,  487. 

&  Ohio  R.  R.  Co.,  9  Heisk.  238  ;  Louis-  ^  And,  as  usual,  for  this  Eedfield  on 

ville  &  Nashville  R.  R.  Co.  i*.  Weaver,  9     Railways,  281,  is  cited. 


198 


COMMENTARIES   ON   SALES. 


[book   III. 


The 


1 


they  were  not  liable  as  carriers  beyond  their  own  route. 
Supreme  Court  of  Iowa  reversed  this  judgment.^ 

The  cases  in  South  Carolina  ^  all  purport  to  be  decided  in  ac- 
cordance with  the  English  cases. 


•  In  doing  so  they  said  :  "The  ques- 
tion here  made  is  one  of  practical  import- 
ance, and  it  is  this  :  When  goods  are  de- 
livered to  a  carrier,  marked  for  a  particular 
place  beyond  the  terminus  of  his  route, 
but  unaccompanied  by  any  other  directions 
for  their  transportation  and  delivery,  ex- 
cept such  as  may  be  inferred  from  the 
marks  themselves,  is  he  bound  to  carry 
and  deliver  them  according  to  the  marks, 
or  is  he  discharged  by  transporting  accord- 
ing to  the  usage  of  the  business  in  which 
he  is  engaged  ?  In  other  words,  do  these 
receipts  constitute  a  contract  to  deliver  at 
Cedar  Rapids,  and  can  parol  evidence  be 
received  to  show  facts  tending  to  give  a 
ditferent  meaning  to  the  contract  ?  The 
court  held  that  it  was  not  a  contract  to 
deliver  at  Cedar  Rapids.  It  seems  as  if 
this  were  easily  settled  by  asking,  if  this 
is  not  the  meaning,  what  is  ?  To  whom, 
then,  and  where  were  they  to  deliver  ?  .  .  . 
It  is  easy  for  the  carrier,  in  such  a  case, 
to  express  the  point  of  carriage  in  the  re- 
ceipt, if  it  be  different  from  the  marks  ; 
and  if  he  does  not,  as  in  the  case  at  bar, 
it  is  implied  that  he  is  to  deliver  accord- 
ing to  the  marks."  But  the  court  also 
held  that,  in  the  construction  of  the  con- 
tract, as  was  intimated  in  one  of  the  Eng- 
lish cases  could  be  done  (see  supra,  p.  77), 
proof  of  the  extent  of  the  defendants'  line 
might  be  given,  as  well  as  proof  of  estab- 
lished usage,  in  the  light  of  which  the  con- 
tract might  be  construed,  and  which  might, 
therefore,  show  a  contract  that  the  goods 
were  to  be  carried  by  the  defendants  to 
their  own  terminus  only,  and  there  to  be 
forwarded  by  them. 

It  is  very  obvious  in  this  case  (see  p. 
494)  that  an  entirely  different  meaning  is 
given  to  the  term  '^primd  facie,"  as  used 
by  Rolfe,  B.,  in  Muschamp  v.  Lancaster 
Ry.,  8  M.  &  W.  421,  from  that  which  he 
intended  ;  as  though  it  meant,  as  used  by 
him,  expressly  what  Lord  Abinger  in  the 
same  case  said  it  did  not  mean,  —  "  con- 
ciusioe."  In  very  many  other  cases  in 
this  country  the  same  view  seems  to  be 
taken  of  Rolfe,  B.'s,  meaning,  which  has 
led  to  much  apparent  antagonism  in  many 
of  those  cases  to  the  English  decisions, 
with  which,  as  we  have  shown,  they  are 
really  in  perfect  accord.  And  in  the  latter 
portion  of  the  Iowa  decision,  it  seems  to 
be  implied  that  they  think  on  that  point 
they  are  holding  contra  to  the  English  de- 
cisions. But,  in  the  later  Iowa  case  of 
Mulligan  v.  Illinois  Central  Ry.  Co.,  36 


Iowa,  181,  186,  this  is  put  more  correctly 
and  intelligently.  It  is  there  said  of  the 
holding  in  the  previous  case  :  "In  Angle 
V.  The  M.  &  M.  Ry.  Co.,  9  Iowa,  487,  the 
rule  was  settled  as  it  is  understood  to  ex- 
ist in  England,  and  it  was  held  that  the 
acceptance  by  a  carrier  of  goods  marked  to 
a  destination  beyond  the  terminus  of  its 
road,  creates  a  prima  fcKie  liability  to 
ti"ansport  to  and  deliver  at  that  point, 
which  may  be  modified  by  proof  of  a  dif- 
ferent usage  known  to  the  shipper  at  the 
time  of  making  the  consignment."  And 
again:  "Whenever  liability  for  such 
transportation  exists  it  arises  either  from 
express  contract  or  from  an  implied  agree- 
ment arising  from  the  acceptance  of  goods 
consigned  to  points  beyond  the  termini  of 
their  routes.  As  they  are  originally  under 
no  obligation  to  undertake  to  transport 
theni  beyond  the  end  of  their  lines,  it  is 
clear  that  they  may,  by  special  agreement, 
stipulate  that  they  shall  not  be  liable  be- 
yond such  point."  This  not  only  thor- 
oughly agrees  with  the  English  cases ;  with 
the  statement  of  the  law  by  Waite,  C.  J., 
in  his  dissenting  judgment  in  the  Connec- 
ticut case,  and  with  the  intelligent  judg- 
ment of  the  Illinois  Appellate  Court,  but 
also  harmonizes  with  the  great  mass  of 
the  American  cases  which  have  been  in- 
correctly assumed  to  have  been  decided 
contra  to  the  English  cases. 

2  Bradford  v.  The  South  Carolina  R. 
R.  Co.,  7  Rich.  201  ;  Bradford  &  Patton 
V.  The  same,  10  Rich.  221  ;  Kvle  v.  The 
Laurens  R.  R.  Co.,  10  Rich.  382  ;  Pied- 
mont Manufacturing  Co.  v.  Columbia,  &c. 
R.  R.  Co.,  19  S.  C.'353.  In  this  last  case 
cited,  Simpson,  C.  J.,  in  delivering  the 
judgment  of  the  court,  says:  "There  is 
really  no  great  difference  between  the  Eng- 
lish and  American  doctrine  on  this  sub- 
ject. The  one  holds  that,  to  exempt  a 
carrier  from  liability  beyond  its  terminus, 
there  must  be  a  special  contract  to  that 
end.  The  other,  that  to  make  the  first 
carrier  responsible,  there  must  be  a  special 
contract  to  that  end.  Both  admit  that 
the  carrier  is  not  bound  to  go  beyond  the 
terminus,  but  that  he  may  do  so  ;  and  if 
he  undertakes  to  do  so,  he  is  bound  by  his 
undertaking.  In  the  one  case,  if  the  con- 
tract contains  no  exemption,  it  is  abso- 
lute ;  in  the  other,  if  conditions  are  spe- 
cified, they  must  govern.  This  is  nothing 
more  than  saying  that  the  whole  thing  is 
per  contract,  and  that  whatever  the  con- 
tract is,  that  must  be  enforced,  —  the  legal 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OP  GOODS.      199 

As  a  new  point  is  raised  in  one  of  the  New  Hampshire  cases, 
we  will  now  examine  the  cases  in  that  State.  The  case  of  The 
Nashua  Lock  Co.  v.  The  Worcester,  <fcc.  R.  R.  Co.,^  is  one  of  the 
best-reasoned  cases  on  the  subject  which  we  have  found.  The 
head-note  of  the  case  is,  "  Where  several  common  carriers  are 
associated  in  a  continuous  line  of  transportation,  and,  in  the 
course  of  the  business,  goods  are  carried  through  the  connected 
line  for  one  price  under  an  agreement  by  which  the  freight  money 
is  divided  among  the  associate  carriers,  in  proportions  fixed  by 
the  agreement ;  if  the  carrier  at  one  end  of  the  line  receives 
goods  to  be  transported  though  marked  for  a  consignee  at  the 
other  end  of  the  line,  and  on  delivery  of  the  goods  takes  pay  for 
transportation  through,  the  carrier,  who  so  receives  the  goods,  is 
bound  to  carry  them,  or  see  that  they  are  carried  to  their  final 
destination,  and  is  liable  for  an  accidental  loss  happening  in  any 
part  of  the  connected  line;"  Perley,  C.  J.,  delivering  the  unan- 
imous judgment  of  the  court.  In  doing  so,  reference  was  made 
to  the  indefinite  manner  in  which  the  terms  "  special  contract," 
"  express  contract,"  ^'■positive  contract,"  are  used.  Thus,  in  Perkins 
V.  The  P.  S.  &  P.  R.  R.,^  the  head-note  is  :  "A  railroad  company 
may  be  bound  by  special  contract,  but  not  otherwise,  to  transport 
persons  or  property  beyond  the  line  of  their  own  road."  The 
New  Hampshire  court,  in  commenting  upon  this,  said  :  "  It  is  to 
be  observed  that  in  this  case  of  Perkins  v.  The  Railroad,  the 

construction  being  that  in  the  one  case,  in  to  carry  them  to  their  marked  destination 
the  absence  of  exemptions,  the  carrier  has  whether  on  or  off  his  own  immediate  por- 
contracted  unconditionally  to  deliver ;  tion  of  a  connecting  line  ;  and  more  par- 
the  other,  with  conditions  inserted,  they  ticularly  so  when  there  is  but  one  through 
must  control.  But  if  there  be  a  differ-  rate,  paid  or  to  be  paid,  charged  for  such 
ence,  that  difference  is  immaterial  here,  through  carriage  ;  that  such  implication 
because  both  parties  claim  a  contract."  is  conclusive,  unless  there  is  a  "special" 
But  we  think  we  have  shown  that  there  is,  contract  or  "express"  contract  to  the 
in  the  actual  holding  in  the  English  cases,  contrary.  But  the  English  cases  hold  no 
and  in  those  in  this  country  (with  a  few  such  doctrine.  The  mere  implication  is 
insignificant  exceptions,  such  as  the  badly  prima  facie  only,  — not  conclusive.  It  is 
decided  cases  in  Connecticut)  which  are  an  inference  that  the  jury  is  warranted  in 
generally  assumed  to  be  decided  adversely  drawing  from  the  facts.  But  it  may  be 
to  the  English  decisions,  really  less  difl'er-  rebutted,  not  by  special  or  express  con- 
ence  even,  than  the  slight  difference  as-  tract  only  ;  but,  as  any  other  mere  prima 
sumed  by  the  South  Carolina  court  to  facie  implication  may  ordinarily  be  re- 
exist  between  them.  In  both  countries  butted,  by  sufficient  proof  of  usage,  or  by 
the  question  simply  is  as  to  what  is  the  any  other  facts  or  circumstances  which 
particular  contract,  expressed  or  implied,  overcome  or  repel  the  implication  which 
in  the  case.  The  mistake  that  is  made  would  arise  from  tiie  otherwise  uncon- 
by  so  many  of  the  courts  and  writers  in  trolled  and  uncontroverted  fact.  That, 
this  country,  is  in  assuming  that  because  in  a  word,  there  is  nothing  at  all  sin- 
it  has  been  very  naturally  held  in  England  gular  in  a  railway  contract,  but  the  or- 
that  where  a  shipper  delivers  goods  to  a  dinary  rules  of  construction  apply  to  it  as 
railway,  marked  for  a  specific  destination,  to  any  other  contract. 
he  implies  thereby  tliat  he  expects  them  ^  9  N.  H.  339. 

to  be  carried  there  ;  so,  the  carrier  receiv-  ^  47  ^g.  573,  examined  by  us  supra, 

ing  them   for   carriage    likewise    implies  p.  136. 
that  he,  in  so  receiving  them,  undertakes 


200  COMMENTARIES   ON   SALES.  [BOOK   III. 

plaintiff  had  judgment  on  the  ground  of  a  special  contract ;  from 
which  the  negative  inference  is  drawn  that  the  plaintiff  could  not 
recover  otherwise  than  bj  a  special  contract.  This  cannot  be  re- 
garded as  quite  equivalent  to  a  direct  decision  on  the  point ; 
for  if  the  point  was  raised  in  the  case,  it  certainly  did  not  require 
the  court  to  determine  whether  a  special  contract  was  necessary 
to  charge  the  defendants,  and  besides  there  is  reason  to  think  that 
the  term  '  express  contract '  could  hardly  have  been  used  in  its 
strict  sense  to  signify  a  contract  in  the  form  of  a  direct  promise 
or  undertaking  in  language,  oral  or  written,  proper  to  show  a  pos- 
itive agreement ;  since  the  judge  who  delivered  the  opinion  of  the 
court  speaks  of  a  case  where  the  carriers  would  be  liable  on  the 
ground  that  they  '  held  themselves  out  as  common  carriers  to  that 
place ; '  in  which  case,  as  I  understand  it,  the  contract  would  not 
be  express,  in  the  strict  or  usual  sense  of  the  terra,  but  implied 
from  the  conduct  of  the  party.  And  the  same  learned  judge  also 
says :  '  It  is  of  great  public  convenience,  if  not  absolute  neces- 
sity, that  several  companies  should  combine  their  operations,  and 
thus  transport  passengers  and  merchandise  by  a  mutual  arrange- 
ment over  all  their  lines,  upon  one  contract,  for  one  price.  In 
such  cases  each  is  held  liable  for  the  whole  distance.'  Instances 
are  to  be  met  with  in  other  books,  of  a  similar  latitude  in  the  use 
of  the  term '  special  contract,'  as  in  2  Redf.  on  Railways,  104,  where 
the  term  '  special  contract '  is  used,  but  the  example  given  is  of  a 
contract  implied  from  certain  facts.  For  these  reasons  we  are  not 
inclined  to  regard  Perkins  v.  The  Railroad  as  a  direct  and  final 
decision  by  the  courts  in  Maine  of  the  question  raised  in  the  pres- 
ent case."  And  again :  "  In  Darling  v.  The  Boston  &  Worcester 
R.  R.,^  it  was  decided  that  'if  an  arrangement  is  made  between 
several  connecting  railroad  companies,  by  which  goods  to  be  car- 
ried over  the  whole  route  shall  be  delivered  by  each  to  the  next 
succeeding  company,  and  each  company  receiving  them  shall  pay 
to  its  predecessor  the  amount  already  due  for  carriage,  and  the 
last  one  collect  the  whole  from  the  consignee,  a  reception  of  such 
goods  by  the  last  company  and  payment  by  it  of  the  charges  of 
its  predecessors  will  not  render  it  liable  for  an  injury  done  to  the 
goods  before  it  received  them.'  From  this  case  the  general  rule 
has  been  deduced  in  Massachusetts,  that  a  carrier  is  not  liable  for 
loss  beyond  his  own  line  without  a  positive  agreement  to  be  so 
liable ;  though  some  of  the  discussion  in  Darling  v.  The  Railroad 
seems  hardly  consistent  with  such  a  rule,  for  the  learned  judge 
who  delivered  the  opinion  says :  '  The  usage  as  to  the  manner  of 
doing  the  business  enters  into  the  contract  as  part  of  it,  in  the 

1  11  Allen,  295. 


PAET  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      201 

absence  of  an  express  contract.  But  the  convenience  of  com- 
mei-ce  makes  it  iiigbly  useful  to  send  goods  to  distant  places 
which  can  be  reached  only  by  independent  lines  of  transportation. 
It  is  important  that  this  business  should  be  accommodated  ;  and 
this  may  be  done  by  express  agreement  or  established  usage.  It 
is  frequently  done  in  this  country  by  arrangements  made  by  the 
proprietors  of  connecting  lines  with  each  other ;  and  this  is  much 
better  than  to  leave  any  important  matter  of  this  kind  to  be  set- 
tled by  usage.  When  such  arrangements  are  made,  the  liability 
of  each  line  is  to  be  determined  by  a  fair  construction  of  their 
terms.'  That  is  to  say,  usage  enters  into  the  contract  on  which 
the  goods  are  carried  for  the  owner ;  but  when  the  business  is 
done  on  the  connected  line  by  an  agreement  among  the  parties  to 
it,  the  liability  of  the  different  parties  to  the  owner  for  the  trans- 
portation of  his  goods  is  to  be  determined  by  a  fair  construction 
of  the  terms  of  the  agreement  among  the  parties  to  the  connect- 
ing line  ;  and  the  contract  on  which  the  goods  are  carried  is  in- 
ferred from  usage,  or  fi-om  the  arrangements  among  the  parties 
to  the  connected  line,  and  in  such  case  does  not  depend  on  any 
positive  agreement  between  the  owner  of  the  goods  and  any  of 
the  carriers."  1 


1  We  here  set  out  the  remainder  of  this 
valuable  judgment  in  full.  Perley,  C.  J., 
goes  on  to  say  :  "We  have  been  furnished 
with  a  manuscript  copy  of  the  opinion  in 
Goss  V.  The  New  York,  Providence  &  Bos- 
ton Railroad,  decided  in  Sutiblk,  March, 
1868,  since  reported  (99  Mass.  220),  in 
which,  on  facts  that  we  cannot  distinguish 
from  the  present,  the  court  held  that  the 
point  was  settled  by  the  prior  decisions  in 
Massachusetts,  especially  by  the  case  of 
Darling  v.  The  Railroad,  and  declined  to 
discuss  the  general  question  further.  .\nd 
in  the  case  of  Burroughs  v.  The  Norwich 
&  Worcester  Railroad,  decided  in  Septem- 
ber, 1868,  we  have  also  been  furnished 
with  the  opinion  of  the  court  holding  the 
law  to  be  well  settled  in  Massachusetts 
that  a  corporation  established  for  the 
transportation  of  goods  over  a  line  between 
certain  points,  and  receiving  goods  directed 
to  a  more  distant  point,  is  not  responsible 
beyond  the  end  of  its  own  line,  unless  it 
makes  a  positive  agreement  extending  its 
liability.  And  this  rule,  if  a  newspaper 
report  can  be  trusted,  was  lately  applied 
in  Pendergast  v.  The  Adams  Express  Com- 
pany, by  the  same  court  to  the  case  of  an 
express  company  that  gives  a  receipt  for 
money  directed  to  a  place  beyond  the  line 
of  the  compnny  that  gives  the  receipt. 
It  has  been  said  that  the  English  rule  on 
this  subject  has  not  been  generally  adopted 


in  this  country.  A  review,  however,  of 
the  American  cases  shows  but  too  plainly 
that  if  our  courts  have  differed  from  the 
English,  they  are  far  from  agreeing  among 
themselves  in  any  principle  or  doctrine 
that  can  be  called  the  American  rule. 
There  is  not  only  much  confusion,  but  no 
little  conflict  in  the  American  authorities. 
A  large  proportion  of  them  are  not  di- 
rectly in  point  for  the  present  case,  which 
must  be  decided  on  the  facts  found  by 
agreement  of  the  parties.  The  following 
are  the  facts  and  circumstances  from  which 
the  contract  between  these  parties  must  be 
inferred  :  — 

"  The  three  corporations  were  engaged 
as  common  carriers  in  the  transportation 
of  goods  in  a  connected  line  between 
Nashua  and  New  York,  under  an  agree- 
ment among  the  parties  to  the  connected 
line. 

,  "  In  the  present  instance,  and  gener- 
ally under  the  agreement,  one  price  was 
paid  for  transportation  through. 

"  The  freight  money  was  divided  among 
the  parties  to  the  connected  line  in  pro- 
portions fixed  by  their  agreement. 

"The  goods  were  received  by  the  de- 
fendants for  transportation  on  the  con- 
nected line  marked  for  New  York. 

"The  legal  inference  from  the  general 
statement  of  the  agreement  is  that  the  par- 
ties to  the  continuous  line  were  bound  by 


202 


COMMENTARIES  ON   SALES. 


[book   III. 


In  Barter  v.  Wheeler,^  it  was  held  that  when  two  or  more  rail- 
roads are  associated  together,  and  form  a  continuous  line  for  the 


their  mutual  contract  to  take  from  each 
other  uud  carry  through,  goods  so  marked 
that  might  be  received  by  any  one  of  them. 

"  The  price  for  transportation  to  New 
York  was  paid  to  the  defendants  when 
they  received  the  goods.  The  American 
authorities  are  comparatively  few,  which 
hold  that  when  all  these  circumstances 
occur,  the  carrier  who  receives  the  goods 
is  not  bound,  by  an  implied  agreement,  to 
carry  them,  or  see  tliat  they  are  carried, 
over  the  connected  line  to  their  final  des- 
tination. I  do  not  find  that  the  decisions 
in  any  of  the  States  sustain  this  defence, 
except  in  Connecticut,  Maine,  and  Mas- 
sachusetts. 

"  With  regard  to  the  cases  in  Connec- 
ticut, it  cannot  imply  any  want  of  the 
respect  due  to  the  courts  of  that  State,  if 
I  say  that  for  two  reasons  their  cases  on 
this  point  are  not  entitled  to  all  the  defer- 
ence that  is  paid  to  their  decisions  on  other 
subjects.  In  the  first  place,  it  is  held 
there  that  railroad  corporations  have  no 
corporate  authority  to  contract  for  the 
transportation  of  goods  or  passengers  be- 
yond their  own  lines  ;  a  doctrine  rejected 
everywhere  else.  If  it  were  admitted  that 
railroads  had  the  power  to  make  such  con- 
tracts, it  does  not  appear  that  the  courts 
in  Connecticut  would  have  decided  that 
the  plaintiff  in  a  case  like  this  would  nob 
be  entitled  to  recover.  Indeed  it  would 
seem  from  the  opinion  of  the  court  as  de- 
livered by  Ellsworth,  J.,  in  Elmore  v.  The 
Nantucket  Railroad,  23  Conn.  457,  that 
in  Connecticut,  these  defendants  would 
be  held  liable  if  their  power  to  contract 
were  conceded.  He  says  '  Xo  money  was 
paid,  or  agreed  to  be  paid,  for  conveying 
the  leather  to  any  specific  place.  There 
was  no  evidence  or  claim  that  there  was 
any  connection  between  the  defendants 
and  the  steamer,  except  in  the  customary 
way  of  forwarding  freight.  They  deliv- 
ered the  goods  to  each  other  from  time  to 
time  as  they  were  m;irked  for  transporta- 
tion, no  matter  to  what  place,  whether  to 
New  York,  California,  Europe,  or  Asia. 
It  is  obvious  that  when  the  different  car- 
riers throughout  the  route  are  connected 
in  business  by  some  joint  understanding 
or  partnership,  there  can  be  no  difficulty 
in  case  of  a  loss  which  happens  on  any 
part  of  the  line  ;  but  the  question  arises, 
when  this  is  not  the  case,  what  is  the  law 
then  ? '  From  this  it  seems  to  me  that 
we  are  warranted  in  supposing  if  the  de- 
fendants had  power  to  contract,  and  the 
facts  had  been  such  as  are  found  in  the 


present  case,  the  court  in  Connecticut 
would  have  no  difficulty  in  charging  the 
defendants  for  a  loss  happening  in  any 
part  of  the  line.  Then  again,  these  de- 
cisions in  Connecticut  were  by  three 
judges  against  two  ;  Waite,  then  chief- 
justice,  and  Hinman,  who  has  since  filled 
that  place.  The  reasons  for  holding  the  de- 
fendants liable  in  Elmore  v.  The  Railroad, 
are  very  ably  and  forcibly  stated  by  Waite, 
C.  J.,  in  his  dissenting  opinion.  '  Such 
dissent,  it  is  evident,  leaves  the  authority 
of  the  cases  so  much  reduced,  that  they 
cannot  be  entitled  to  great  weight  out  of 
the  jurisdiction  in  which  they  were  decided. 
"  The  single  case  of  Perkins  v.  The  P.  S. 
&  P.  Railroad,  for  reasons  before  suggested, 
we  cannot  consider  as  a  final  settlement  of 
the  question  in  Maine.  But  in  Massachu- 
setts, the  court  in  a  series  of  decisions 
have  established  the  rule  that  a  carrier, 
though  associated  with  othei's  in  a  con- 
nected line  of  transportation,  is  not  liable 
for  a  loss  happening  beyond  his  own  line 
without  a  positive  agreement  to  that  effect; 
and  this  rule  is  apidied  to  the  baggage  of 
passengers,  and  the  undertaking  of  express 
companies  that  receive  goods  for  transpor- 
tation beyond  their  own  lines.  The  fact 
that,  notwithstanding  the  earlier  decisions, 
suits  have  continued  to  be  brought  in  that 
Commonwealth  against  parties  that  have 
received  goods  to  be  transported  on  con- 
tinuous lines  for  losses  hajipening  bej'oud 
their  own  lines,  might  seem  to  suggest  a 
suspicion  that  the  profession  and  the  pub- 
lic had  not  readily  acquiesced  in  the  rule 
as  there  laid  down  ;  but  the  court  have 
adhered  firmly  to  the  rule,  and  in  some  of 
the  later  cases  have  apparently  declined  to 
enter  on  the  discussion  of  the  question, 
treating  it  as  finally  settled  ;  and  we  must, 
therefore,  consider  the  high  authority  of 
that  court  as  against  the  right  of  the 
plaintifTs  to  recover  in  this  action.  So  far, 
however,  as  that  court  may  be  understood 
to  have  established  the  rule  that  to  bind 
a  railway  for  transportation  beyond  its 
own  line,  there  must  be  an  express  and 
positive  agreement  between  the  railroad 
and  the  owner  of  the  goods,  and  that  such 
an  undertaking  is  not  to  be  implied  from 
facts  such  as  are  found  in  this  case,  the 
current  of  American  authority,  to  say 
nothing  of  the  English,  appears  to  be 
strong  the  other  way.  Excepting  the 
cases  in  Connecticut  and  Maine,  which, 
when  examined,  do  not,  I  think,  give  the 
Massachusetts  doctrine  any  very  strong 
support,  the   authorities  in  other  States, 


1  49  N,  H.  9,  25. 


A 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS. 


203 


transportation  of  freight  and  passengers,  giving  to  each  the  right 
to  sell  tickets  and  receive  freight,  and  bargain  for  its  transpo^'ta- 


though  they  differ  much  in  other  particu- 
lars, generally  agree  iu  this,  that  where, 
as  iu  the  jiresent  case,  there  is  a  coutiuu- 
ous  liue  of  ditfereut  carriers  united  by  an 
agi'eemeut  under  which  they  carry  goods 
through  the  connected  line  for  one  price, 
which  they  divide  among  themselves  in 
proportions  fixed  in  their  agreement,  if  one 
of  the  parties  receiving  goods  to  be  trans- 
ported on  the  continuous  line,  marked  for 
any  place  in  it,  and  on  receiving  the  goods 
takes  pay  for  transporting  them  to  that 
place,  the  party  so  receiving  the  goods  and 
the  pay  for  transportation  is  prima,  facie 
bound  by  an  implied  agreement  to  carry 
the  goods,  or  see  that  they  are  carried, 
to  tlie  place  for  which  they  are  marked, 
and  is  liable  for  a  loss  happening  on  any 
part  of  the  connected  line. 

"  If  the  case  were  to  be  considered  on 
authority  only,  we  should  feel  bound  to 
decide  for  the  plaintifis,  inasmuch  as  we 
find  the  weight  of  authority  to  prepon- 
derate heavily  in  their  favor,  and  taking 
general  principles  and  reasons  of  conven- 
ience and  public  policy  for  our  guide,  we 
are  led  to  the  same  conclusion. 

"  In  the  view  which  the  plaintiffs  ask 
us  to  take  of  this  case,  when  the  goods 
were  received  by  the  defendants,  marked 
for  transportation  to  New  York,  and  the 
price  paid  to  the  defendants  for  transpor- 
tation througli  on  the  continuous  line,  the 
plaiutiffs  made  one  contract  with  the  de- 
fendants, by  which  the  defendants  agreed, 
either  as  joint  carriers  with  the  other  asso- 
ciate parties,  or  as  undertaking  for  them 
to  carry  the  goods  through  for  the  price 
paid,  as  goods  were  carried  in  the  usual 
course  of  the  business  on  that  line.  In 
that  view,  the  plaintiffs  would  have  noth- 
ing further  to  do  in  the  matter.  Every- 
thing else  was  provided  for  by  the 
agreement  among  the  associated  carriers  ; 
for  by  their  agreement,  the  defendants 
were  bound  to  transport  and  the  successive 
carriers  would  be  bound  to  take  and  carry 
the  goods  from  each  other  to  tlieir  final 
destination.  The  price  through  was  paid, 
and  belonged  to  the  different  carriers  in 
proportions  fixed  by  their  agreement,  and 
this  theory  would  agree  exactly  with  the 
facts  ;  for  the  plaintiffs  in  fact  made  but 
one  agreement  with  one  party  to  have  the 
goods  carried  for  one  price  to  New  York. 
No  further  stipulation  or  direction  on  the 
part  of  the  plaintiffs  was  necessary,  and 
none  was  ever  in  fact  given  by  osviiers  of 
goods  who  put  them  in  the  course  of  trans- 
portation, as  these  were  put,  in  the  con- 
tinuous line. 

"According  to  the  defendants'  theory 


of  the  case,  when  the  plaintiffs  delivered 
the  goods  marked  for  New  York,  and  the 
defendants  received  them  and  took  pay 
for  transportation  through,  no  contract 
was  made  with  any  party  to  carry  the 
goods  through  ;  but  the  contract  then 
made  by  the  defendants  was  to  carry  the 
goods  to  the  next  carriers  on  the  connected 
line  with  the  surplus  money,  and  as  agents 
of  the  plaintiffs,  make  a  contract  if  they 
could  with  the  next  carriers  to  take  the 
goods  and  the  money,  and  carry  them  on 
in  the  same  way  through  successive  agen- 
cies for  the  plaintiti'  to  their  final  destina- 
tion. If  these  agents  should  consent  to 
act  for  the  plaintiffs,  and  be  able  to  nego- 
tiate bargains  with  the  other  carriers  for 
transportation  through,  the  goods  would 
go  to  New  York  as  was  intended  ;  but 
they  would  go  under  three  separate  con- 
tracts made  at  different  times  through  this 
imaginary  agency  with  three  different  and 
independent  parties. 

"The  first  objection  to  the  defendants' 
theory  of  this  transaction  is  that  it  is  con- 
trary to  the  fact.  The  owner  of  goods  in  a 
case  like  this  does  not  in  fact  ajijioint  or 
employ  the  successive  carriers  in  the  con- 
tinuous line  as  his  agents  to  hold  his 
money  for  him,  and  as  his  agents  carry  it 
forward  and  contract  in  his  behalf  with 
the  other  roads  for  further  transportation. 
He  makes  but  one  contract  for  the  price  ; 
he  pays  the  price,  and  the  mon>  y  he  has 
paid  does  not  belong  to  him,  but  to  the 
associated  carriers  in  proportions  fixed  by 
their  agreement.  He  does  not  iuq^uire, 
nor  is  he  interested  to  know,  how  they 
divide  the  money.  The  contract  is  entire 
and  complete  when  he  pays  the  [irice  for 
trans]iortation  through,  and  everything  to 
be  done  afterwards  is  regulated  by  the 
standing  agreement  among  the  associated 
carriers.  He  has  no  control  over  them  as 
his  agents  ;  he  does  not  and  cannot  inter- 
meddle with  the  manner  in  which  they  do 
the  business  or  dispose  of  the  money  that 
he  has  paid  for  the  carriage  of  his  goods. 
Let  us  see  what  are  some  of  the  con- 
sequences that  would  follow,  if  both  par- 
ties in  a  case  like  this  should  act  on  the 
defendants'  view  of  their  legal  rights. 
Suppose  in  this  case  the  goods  had  been 
carried  through  to  New  Yoik,  and  the 
defendants  had  not  paid  to  the  next  car- 
riers the  proportion  of  the  freight-money 
which  belonged  to  tlie  other  carriers  ;  and 
then  suppose  that  the  Norwich  &  Worces- 
ter Railroad  should  sue  the  plaintiffs  for 
carrying  the  goods  over  their  road.  It 
would  avail  the  plaintiffs  notliing  to  say 
that  they  had  paid  the  freight  through 


204 


COMMENTARIES   ON   SALES. 


[book  III. 


tion  over  the  whole  line,  and  to  receive  the  price  of  said  tickets 
and   transportations,  the   same   to  be   divided  between  them  at 


when  the  goods  were  received  at  this  end 
of  the  route.  The  ready  answer  would  be  : 
'To  be  sure,  you  put  money  into  the 
hands  of  your  agents,  the  Worcester  & 
Nashua  Railroad,  to  pay  us,  but  they 
neglected  their  duty  ;  your  money  is  still 
in  tiieir  hands,  and  we  are  not  paid.'  It 
is,  however,  quite  clear,  that  the  money 
received  by  the  defendants  for  transporta- 
tion through  on  the  connected  line  would 
be  held  by  them  for  all  the  parties  to  the 
line  ;  they  would  be  bound  to  account  for 
it  under  their  agreement,  as  one  partner 
accounts  with  his  fellows  for  money  re- 
ceived on  partnership  account.  Then  if 
the  plaintiffs  should  undertake  to  pay  the 
different  carriers,  how  are  they  to  know 
the  share  of  each  ?  The  proportions  of  the 
freight  money  belonging  to  them  respec- 
tively are  regulated  by  a  private  agreement 
of  which  the  plaintiffs  knew  nothing,  and 
of  which  in  the  way  the  business  is  actually 
conducted  they  have  no  need  to  be  in- 
formed. If  the  plaintiffs  had  proposed, 
when  they  delivered  the  goods,  to  pay  the 
Worcester  &  Nashua  road  their  proportion 
of  the  freight  money,  and  afterward  to  pay 
the  other  carriers  their  respective  shares, 
they  probably  would  have  found  nobody 
to  tell  them  what  the  different  shares  were, 
or  to  receive  the  goods  to  be  carried  on 
such  terms.  In  truth  the  connected  line 
transacts  business  as  one  joint  concern, 
and  the  business  cannot  be  transacted 
otherwise,  with  convenience  either  to  the 
carriers  or  the  owners  of  the  goods.  Then 
if  we  look  to  the  remedy  of  the  associated 
carriers  for  the  recovery  of  the  freiglit 
money,  each,  on  the  theory  of  the  defend- 
ants, must  bring  a  separate  suit  on  the 
separate  contract  for  his  proportion  of  the 
money.  We  have  had  occasion  to  learn 
from  the  facts  stated  in  another  case  now 
pending  before  us,  that  there  is  a  con- 
nected line  consisting  of  six  or  seven 
different  raihvays,  extending  from  Ogdens- 
burg  in  New  York  through  Vermont  and 
New  Hampshire  to  Boston  in  Massa- 
chusetts, in  which  one  price  is  paid  for 
transportation  through,  and  the  money 
divided  by  a  standing  agreement  as  in  this 
case.  If  goods  are  carried  through  on 
this  route,  and  there  are  six  or  seven  dif- 
ferent contracts,  one  with  each  road,  then 
each  road  must  bring  a  separate  action  for 
its  share  of  the  freight  money.  If  it 
should  be  said  that  the  remedy  of  the 
roads  is  to  retain  the  goods  at  the  end  of 
the  route  till  the  whole  price  for  transpor- 
tation through  is  paid,  this,  in  the  first 
place,  would  show  that  these  roads  are  so 
combined  that  for  their  own  purposes  they 


are  a  unit,  while  they  insist'  that  they 
are  wholly  separate  and  independent  when 
the  owner  seeks  redress  for  the  loss  of  his 
goods.  And  then  again,  if  the  roads  act 
separately  and  are  not  jointly  interested 
in  the  business  of  the  connected  line, 
when  one  of  the  roads  parts  with  the 
possession  of  goods  by  delivery  to  another, 
it  loses  its  lien  for  the  freight  money,  and 
cannot  transfer  it  to  another  independent 
carrier.  Angell  on  Carriers,  357,  359, 
609.  This  is  not  at  all  like  a  maritime 
lien,  when  a  voyage  is  broken  up  and  the 
cargo  is  put  on  board  another  vessel  to  be 
carried  to  the  port  of  destination.  There 
the  lien  on  the  cargo  for  the  whole  freight 
is  transferred  to  the  second  vessel,  which 
completes  the  transportation  under  one 
contract. 

"The  use  of  steam  in  carrying  goods 
and  passengers  has  produced  a  great  revo- 
lution in  the  whole  business.  The  amount 
and  importance  of  it  have  of  late  vastly 
increased  and  are  every  day  increasing. 
The  large  business  between  different  parts 
of  the  country  is  done,  as  in  this  case, 
by  parties  who  are  associated  in  long  con- 
tinuous lines,  receiving  one  fare  through, 
and  dividing  it  among  themselves  by 
mutual  agreement.  They  act  together  for 
all  practical  j)urposes,  so  far  as  their  own 
interests  are  concerned,  as  one  united  and 
joint  association.  In  managing  and  con- 
trolling the  business  on  their  lines  they 
have  all  the  advantages  that  could  be 
derived  from  a  legal  partnership.  They 
make  such  an  arrangement  among  them- 
selves as  they  see  tit  for  sharing  the  losses, 
as  they  do  the  profits,  that  happen  in  any 
part  of  their  route.  If  by  their  agreement 
each  party  to  the  connected  line  is  to 
make  good  the  losses  that  happen  in  his 
part  of  the  route,  the  associated  carriers, 
and  not  the  owner  of  the  goods,  have  the 
means  of  ascertaining  where  the  losses 
have  happened.  And  if  this  cannot  be 
known,  there  is  nothing  unreasonable  or 
inconvenient  in  their  sharing  the  loss,  as 
in  case  of  a  legal  partnership,  in  pro- 
portion to  their  respective  interests  in  the 
whole  route. 

"They  undertake  the  business  of  com- 
mon carrier,  and  must  be  understood  to 
assume  the  legal  liabilities  of  that  busi- 
ness. They  transact  the  business  under  a 
change  of  circumstances  ;  but  the  prin- 
ciples and  the  general  policy  of  the 
common  law,  which,  as  an  elementary 
maxim,  holds  the  common  carrier  liable 
for  all  accidental  losses,  must  be  applied 
to  these  new  methods  of  transacting  the 
same  business ;    and  there    is    certainly 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS. 


205 


periodical  settlements;  the  sale  of  such  tickets,  and  the  obtain- 
ing of  such  freight,  being  for  the  common  benefit  of   all  the 


nothing  in  the  present  condition  of  the 
business,  which  calls  for  any  relaxation  of 
the  old  rule.  The  great  value  of  com- 
modities transported  over  these  connected 
lines ;  the  increased  risk  of  loss  and 
damage  from  the  immense  distances  over 
which  they  carry  goods  ;  the  fact  that 
where  goods  are  once  intrusted  to  carriers 
on  tliL-scf  long  routes  they  are  placed 
beyond  all  control  and  supervision  of  the 
owner,  are  cogent  reasons  for  holding  those 
who  associate  in  these  connected  lines,  to 
a  rule  that  shall  give  efi'ectual  and  con- 
venient remedy  to  tlie  owner,  whose  goods 
have  been  lost  or  damaged  in  any  part  of 
the  line.  Any  rule,  which  should  have 
the  effect  to  defeat  or  embarrass  the 
owner's  remedy  would  be  in  direct  conflict 
with  the  principles  and  whole  policy  of 
the  common  law. 

"What  then  is  the  situation  of  the 
owner,  whose  goods  have  been  damaged 
or  lost  on  a  continuous  line  of  three  or 
any  larger  number  of  associated  carriers, 
if  he  can  look  only  to  the  carrier,  on 
whose  part  of  the  route  the  damage  may 
have  happened  ?  In  the  first  place,  he 
must  set  about  learning  where  his  loss 
happened.  This  would  often  be  difficult, 
and  sometimes  quite  impossible.  Sup- 
pose an  invoice  of  flour  shipped  in  good 
order  at  Ogdensburg  were  found  on  amval 
at  Boston  to  have  been  damaged  some- 
where on  the  route  ;  or  suppose  a  trunk 
checked  at  Boston  for  Chicago  was  broken 
open  and  plundered  before  it  reached 
Chicago,  what  would  the  owner's  chance 
be  worth  of  finding  out  in  what  partic- 
ular part  of  the  route  the  damage  hap- 
pened ?  He  would  have  no  means  of 
learning  himself ;  and  he  would  not,  unless 
of  a  very  confiding  disposition,  rely  on 
any  very  zealous  aid  in  his  search  from 
the  different  carriers  associated  in  the 
connected  line.  And  if  he  should  have 
the  luck  to  make  the  discoveiy,  he  might 
be  obliged  to  assert  his  claim  for  compen- 
sation against  a  distant  party,  among 
strangers,  in  circumstances  such  as  would 
discourage  a  prudent  man,  and  induce  him 
to  sit  down  patiently  under  his  loss,  rather 
than  incur  the  expense  and  risk  of  press- 
ing his  legal  remedy  under  the  rule  set  up 
by  these  defendants.  The  forlorn  con- 
dition of  the  owner  in  such  a  case  is  put 
in  a  strong  light  by  Waite,  C.  J.,  in  his 
dissenting  opinion,  Elmore  v.  The  Nan- 
tucket Railway,  23  Conn.  478,  vdiere  he 
says  :  'A  merchant  residing  in  Cleveland, 
Toledo,  or  Chicago,  purchases  goods  in 
the  city  of  New  York,  which  he  wishes  to 
send  to  his  place  of  business.     He  enters 


into  a  contract  with  a  railroad  company 
for  their  transportation,  not  to  any  given 
point  on  the  route,  but  for  the  whole 
distance.  He  delivers  the  goods  to  the 
company,  and  they  are  taken  and  locked 
up  in  freight  cars.  He  does  not  accom- 
pany them,  and  often  sees  and  hears 
nothing  more  of  them  until  they  are 
delivered  to  him  at  their  place  of  destina- 
tion. The  cars  in  which  they  are  placed 
are  often  run  over  roads  belonging  to 
different  companies,  to  save  trouble  and 
expense  of  change  of  cars.  If  the  goods 
are  lost  or  damaged  on  the  route,  he 
ordinarily  has  no  means  of  determining 
where  or  in  whose  custody  the  injury 
occurred.  The  trouble  and  expense  of 
ascertaining  that  fact  in  many  cases  would 
amount  to  more  than  the  wliole  damage. 
As  a  j)rudent,  cautious  man,  he  would  be 
unwilling  to  intrust  his  goods  to  the  cus- 
tod}'  of  others,  unless  he  could  find  some 
person  or  com|)aiiy  that  would  be  resjion- 
sible  for  their  safe  delivery.'  The  remarks 
of  Smith,  J.,  34  New  York,  501,  before 
cited,  are  of  the  same  import,  showing  the 
difficulties  and  embarrassments  of  the 
owner,  if  he  can  only  resort  for  compensa- 
tion to  the  carrier  in  the  connected  line, 
on  whose  part  of  the  route  the  damage 
happened. 

"  A  rule  which  throws  such  difficulties 
in  the  way  of  the  owner  who  seeks  to  re- 
cover of  common  carriers  for  the  loss  of  his 
goods,  I  cannot  but  regard  as  a  wide  de- 
parture from  the  general  doctrine  of  the 
common  law  on  this  subject ;  and  nothing 
is  plainer  than  the  duty  of  courts  to  apply 
the  general  principles  of  the  common  law 
to  the  new  circumstances  which  are  intro- 
duced by  changes  in  the  manner  of  trans- 
acting any  business.  Few  things  are  of 
greater  importance  to  the  whole  country 
than  the  cheap,  convenient,  and  safe  trans- 
portation of  goods  between  distant  points. 
Vast  sums  of  money  are  exx^ended  to  pro- 
mote this  object.  The  business  is  already 
immense,  and  constantly  increasing.  Most 
of  this  business  is  done  on  connecting  lines 
of  railroads  and  .steamboats,  and  these  by 
continuous  lines  have  a  practical  monopoly 
of  the  business  on  their  respective  roads. 
The  owner  of  goods  must  intrust  them  to 
these  associated  carriers  ;  they  cannot  be 
carried  in  any  other  way.  Not  only  those 
who  are  engaged  directly  in  carrying  and 
sending  goods  are  interested  in  this  sub- 
ject ;  all  who  produce  and  all  who  con- 
.sume  are  interested  that  goods  should  be 
carried  as  cheaply,  as  convtmiently,  and 
as  safely  as  possible.  Public  jKilicy  and 
the  public  interest  concur  with  the  general 


20Q  COMMENTAEIES   ON   SALES.  [BOOK   III. 

companies,  the  receipts  being  divided  between  them  in  proportion 
to  the  amount  of  service  rendered  by  each ;  they  stand  substan- 
tially in  the  position  of  partners  in  such  through  business,  and 
are  jointly  liable  for  losses  on  any  part  of  the  through  route. 
This  holding  corresponds  with  that  in  the  Irish  cases.^  This 
New  Hampshire  case  seems  to  consider  the  English  cases  as 
holding  that  in  no  case  will  an  action  lie  against  an  intermediate 
carrier.  But  we  think  it  clear  that  this  view  is  inaccurate.  On 
the  point  of  joint  liability,  where  the  relationship  is,  in-  effect, 
that  of  partners,  the  Irish  cases  are  professedly  founded  on  the 
English  cases ;  and,  as  we  have  shown,  supra,  p.  81,  the  English 
cases  hold,  that,  when  there  is  but  one  entire  contract,  an  action 
will  only  lie,  on  the  contract,  against  a  party  to  the  contract ;  yet  in 
tort,2  for  a  loss  caused  by  negligence,  the  English  cases  hold,  as 
was  held  in  New  Jersey  Steam  Nav.  Co.  v.  Merchants'  Bank,^ 
cited  in  the  New  Hampshire  case,  that  an  action  will  well  lie 
against  the  company,  independent  of  contract,  for  the  loss  caused 
by  their  negligence ;  thus  giving  the  plaintiff  the  remedy,  at  his 
election,  either  against  the  party  with  whom  he  contracted,  under 
his  contract,  or  against  the  party  whose  negligence  caused  the 
loss,  for  the  misfeasance. 

In  State  v.  Hodge*  is  an  elaborate  judgment  by  Doe,  J.,  on  the 
subject  of  presumptions,  as  to  whether  they  are  of  law  or  of  fact. 
We  think  that  the  authorities  cited  there  show  that  there  are 
presumptions  of  law  and  presumptions  of  fact.  The  argument, 
however,  rather  is  that  all  presumptions  are  simply  presumptions 
of  fact.     The  authorities  there  cited  do  not  sustain  this  position. 

maxim  of  the  law  that  those  who  transact  road,  the  Ogdensburg  Railroad  is  h'able  for 

this  great  business  should  be  held  to  a  rule  the  loss.     But  if  merchandise  is  received 

whi.;h  shall  give  a  ready  and  effectual  rem-  at  Boston  by  the  Lowell  Railroad  for  trans- 

edy  to  the  owner  whose  goods  have  been  portation  to  Ogdensburg  over  the   same 

lost  or  damaged  in  any  part  of  these  con-  connected  line  of  railroads  associated  under 

nected  lines  of  transportation.     There  is  a  the  same  agreement,  the  owner  would  be 

perplexing  diversity  of  decision   on   this  left  to  find  out,  if  he  could,  on  which  of 

subject  in  the  different  tribunals  of  this  the  six  or  seven  connected  roads  his  goods 

country.   For  instance,  by  the  law  of  New  were  lost  or  damaged,  and  could  claim  for 

York,  as  we  understand  it  to  be  established  his  loss  of  that  road  alone.     There  would 

by  the  construction  which  the  courts  have  seem  to  be  no  remedy  for  this  confusion 

given  to  their  statute,  if  goods  are  received  and  conflict  of  decisions  unless  the  national 

in  that  State  for  transportation  through  on  Legislature   can   provide   one   under    the 

a  connected  line  of  railroads,  the  road  that  power  given  by  the  Constitution  to  regu- 

receives  the  goods  is  liable  for  loss  or  dam-  late  commerce.     1  come  to  the  conclusion 

age  happening  in  any  part  of  the  connected  that  on  the  case  stated  the  plaintiffs  are 

line,  though  beyond  the  limits  of  the  State,  entitled  to  recover  ;  and  such  is  the  unani- 

Burtis  V.  The  Buffalo  &  State  Line  R.  R.,  mous  opinion  of  the  court."    Nashua  Lock 

qtca  supra.      As    has   been   before   men-  Co.  v.   The  Worcester,  &c.  R.  R.  Co.,  48 

tioned,  there  is  a  connected  line  of  six  or  N.  H.  356  et  seq. 
seven  railroads  extending  from  Ogdensburg  i  Stated  by  us,  supra,  86  et  seq. 

to  Boston.     If  goods  are  received  by  the  -  See  supra,  88,  n. 

Ogdensburg    Railroad    for    transportation  8  6  How.  (U.  S.)  344. 

to  Boston,  and  are  lost  or  damaged  on  any  *  50  N.  H.  510. 

part  of  the  line,  say  on  the  Lowell  Rail- 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      207 

Of  course  all  law  is  based  on  fact,  but  from  certain  facts  a  legal 
presumption  may  always  arise ;  that  is,  it  is  a  presumption  of  law 
arising  from  a  given  state  of  facts.  The  question,  we  think,  at 
least  as  far  as  it  affects  the  subject  we  are  considering,  is  not  now 
practically  debatable.  Presumptions  are  divided  into  presump- 
tions of  law,  presumptions  of  fact,  and  mixed  presumptions  of 
law  and  fact.^  Our  reason  for  referring  to  State  v.  Hodge  ^  is 
because  the  same  court,  following  that  case,  in  Gray  v.  Jackson,^ 
Doe,  J.,  again  delivering  the  judgment,  treats  the  whole  matter 
we  have  been  considering  simply  as  one  of  fact,  and  not  at  all,  or 
in  any  respect  as  one  of  law.  In  order  to  arrive  at  this  conclu- 
sion, there  is,  as  in  the  previous  case,  a  wholesale  distortion  of 
the  authorities  cited.  If,  in  all  of  the  cases  on  the  subject  which 
arise,  whether  in  England  or  in  the  different  States  of  the  Union, 
the  question  is  purely  one  for  the  jury,  as  this  last  New  Hamp- 
shire case  puts  it,  then  there  would  soon  be  a  state  of  inextrica- 
ble confusion  which  would  require  immediate  legislative  remedy. 
But  we  think  that  none  of  the  great  number  of  cases  cited  on 
the  subject  in  the  New  Hampshire  case  sustain  the  holding  in 
that  case ;  but  the  reasonings  and  conclusions  in  them  all  are 
diametrically  opposed  to  the  holding  in  that  case.  In  all  such 
cases  as  these,  we  think  the  questions  are  mixed  questions  of  law 
and  fact.  In  the  Connecticut  case  referred  to  in  the  New  Hamp- 
shire case,  the  court,  on  the  facts,  treated  the  question  involved 
as  being,  to  some  extent,  one  of  law,  as  on  legal  grounds  **  they 
nonsuited  the  plaintiff ;  holding,  as  a  matter  of  law,  that,  on  the 
plaintiff's  own  showing,  there  was  no  case  to  go  to  a  jury.  So,  in 
another  prominent  case  on  the  subject,  Muschamp  v.  Lancaster 
Ry.,^  it  was  clearly  a  mixed  matter  of  law  and  fact.  For  there, 
not  only  were  there  facts  which  were  left  to  the  jury,  but  Rolfe, 
B.,  instructed  the  jury,  as  a  matter  of  law,  applicable  to  the  facts 
in  that  case,  that  there  was  legal  evidence,  in  such  facts,  of  the 
defendants'  liability.  In  this,  as  a  matter  of  law,  he  was  sus- 
tained by  the  full  court.  Ergo,  had  he,  as  a  matter  of  law, 
instructed  the  jury  in  the  opposite  way,  there  would  have  been 
misdirection,  in  law,  and  the  verdict  would  have  been  set  aside. 
And  Doe,  J.,  in  the  New  Hampshire  case,  while  actually  quoting 
the  language  in  the  case,  seems  entirely  oblivious  of  the  fact,  that 
the  question  in  Muschamp  v.  Lancaster  Ry,^  came  up  exclusively 
as  a  question  of  law.     The  rule  nisi,  which  was  granted  in  the 

^  See  BePt  on  Evid.,  §  303  et  seq.  seen,  supra,  139  ct  seq.,  differing  with  the 

"^  50  N.  H.  510.  law  as  it  is  held  in  England. 

3  51  N.  H.  9.  6  8  M.  &  W.  421. 

*  The  majority  of  the  court,  as  we  have  '  Ibid. 


208  COMMENTARIES   ON   SALES.  [BOOK   III. 

case  and  which  was  unanimously  discharged/  was  not  on  the 
ground  of  the  verdict  of  the  jury  being  unwarranted  by  the  facts ; 
but  on  the  ground  that  there  had  been  misdirection  by  the  judge, 
as  a  matter  of  law.  And  the  court  sustained  the  law,  and  the 
verdict  as  well ;  holding  that  the  finding  on  all  the  facts  was, 
in  the  case,  thoroughly  consistent  with  the  law  as  laid  down  in 
the  case  by  Rolfe,  B,  And  that  learned  judge,  in  his  judgment, 
expressly  says,  "  I  think  the  construction  we  are  putting  on  the 
agreement  is  7iot  only  consistent  with  law^  but  is  the  only  one 
consistent  with  common-sense  and  the  convenience  of  mankind." 
It  is  the  province  of  the  courts  —  "  we  " —  to  decide  questions  of 
law,  not  issues  of  fact. 

The  attempted  correction  of  the  reporter's  note  by  Doe,  J.,  in 
Gray  v.  Jackson  ^  would  be  an  entire  misstatement  of  the  holding 
in  the  Muschamp  case.  The  court  held  that  the  law  had  been  laid 
down  by  Rolfe,  B.,  without  misdirection,  and  that  the  verdict  of 
the  jury,  under  such  proper  direction,  was  fully  sustained  by  the 
facts.  The  finding  of  the  jury  was  not  even  attacked,  because, 
as  is  manifestly  evident  in  the  case,  if  the  direction  was  sound, 
the  additional  facts  in  the  case  showed  the  defendants'  liability 
on  their  implied  entire  through  contract  beyond  any  question,  as 
a  matter  of  law  and  of  fact.  The  New  Hampshire  court  was  pal- 
pably wrong  in  treating  as  they  do  the  directions  of  the  judge 
merely  as  aii  opinion  of  the  weight  of  the  evidence.  If  Rolfe,  B.'s, 
view  of  the  law  had  been  such  as  was  held  by  the  mere  majority 
of  the  judges  in  the  unsoundly  decided  Connecticut  cases,  then, 
instead  of  directing  the  jury  as  he  did,  on  a  matter  of  law,  it 
would  have  been  his  duty  to  have  pursued  the  course  of  the 
Connecticut  court,  and  to  have  nonsuited  the  plaintiff. 

It  is  also  noteworthy  that  in  the  Connecticut  case  of  Elmore  v. 
The  Naugatuk  R.  R.  Co.,^  where  the  judge  laid  down  the  law 
substantially  as  it  has  been  uniformly  decided  in  England,  and 
the  jury,  as  in  England,  found  for  the  plaintiff  on  the  facts  ;  yet 
the  majority  of  the  Connecticut  court  set  aside  the  verdict,  be- 
cause they  considered*  that  the  jury  had  "  acted  under  erroneous 
views  of  the  law;"  the  court  further  saying,^  relative  to  their 
action  in  New  York  &  N.  H.  R.  R.  Co. ,6  that  they  had  then  inti- 
mated that  the  recent  English  cases  "  ivere  not  law  ;  "  and,  "  We 
rejected  the  law  of  those  cases,  in  their  (sic)  application  to  pas- 
sengers, and  we  are  ready  to  do  it  in  relation  to  freight."     And 

^  And  the  decision  of  the  court  in  doing  3  23  Conn.  457. 

which  lias  since    been    unanimously  sus-  <  See  at  p.  470. 

taineil,  as  a  matter  of  law,  by  all  of  the  ^  ^>^i  p   474^ 

English  courts  in  succession.  6  22  Conn    1. 

2  51  N.  H.  at  p.  15. 


PAET  ir.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      209 

if  the  law  of  the  Connecticut  cases  is  sound,  no  case  other  than 
Gray  v.  Jackson  ^  has  ever  questioned  the  correctness  of  the 
course  of  the  majority  of  the  court  in  setting  aside  the  verdict 
of  the  jury. 

Again,  in  Webber  v.  Great  Western  R.  Co.,^  the  court  held  that 
"  there  was  evidence  for  the  jury  of  one  contract  only,  and  not  two 
co7itracts.^^  Therefore  their  verdict  was  sustained.  But  had  the 
jury  found  that  there  were  two  contracts,  and  not  one,  semhle, 
their  verdict  would  have  been  set  aside.  It  is  the  province  of  the 
jury  to  decide  on  the  facts ;  and  when,  on  their  finding  there  are 
facts  which,  on  the  law  applicable  to  the  case,  their  verdict  can  be 
fairly  sustained,  it  will  be ;  otherwise,  it  will  be  set  aside.  This 
is  so  simply  and  merely  elementary,  that  it  is  strange  to  find 
an  elaborate  judgment  by  the  New  Hampshire  court  endeavoring 
to  prove  the  contrary,  and  attempting  to  do  so  too  by  a  complete 
perversion  of  the  cases.  Evidently  Parker,  C.  J.,  was  not  a  mem- 
ber of  the  New  Hampshire  court  when  Gray  v.  Jackson^  was 
decided. 

The  case  of  The  Nashua  Lock  Co.  v.  The  Worcester,  &c.  R.  R. 
Co.,*  in  the  same  court,  which  we  have  stated  very  fully ,^  is  much 
better  decided.  There  ^  the  question  is  put,  as  it  properly  is,  as 
one  of  mixed  law  and  fact ;  a  "  legal  inference,"  to  be  inferred 
from  the  facts  and  circumstances ;  or,  as  it  is  put  in  Railroad  Co. 
V.  Pratt,^  "  the  weight,  the  force,  or  the  degree  of  evidence  is  not 
before  us  if  there  was  competent  evidence  on  which  the  jury  might 
lawfully  find  the  existence  of  the  contract  alleged.  .  .  .  Both  the 
authority  of  Graves,  the  station  agent,  to  make  the  contract,  and 
the  evidence  of  Pratt  and  others  of  the  making  of  the  contract, 
were  questions  of  fact  for  the  consideration  of  the  jury.  If  the  jury 
have  found  in  the  plaintiff's  favor  on  these  points,  upon  evidence 
legally  sufficient  to  justify  it,  this  court  cannot  interfere  with  their 
findings." 

Gray  v.  Jackson  ^  is  not  only  not  sustained  by  the  English  and 
American  authorities  generally,  but  it  is  opposed  to  the  better  de- 
cided cases  in  the  New  Hampshire  court  itself.  Thus,  again,  in 
Nashua  Lock  Co.  v.  The  Worcester,  &c.  R.  R.  Co.,^  Perley,  C.  J., 
in  delivering  the  unanimous  judgment  of  the  New  Hampshire 
court  condemning  such  a  "  rule  "  of  law  qs  was  held  in  the  Con- 
necticut cases,  says :  "  A  rule  which  throws  such  difficulties  in 
the  way  of  the  owner  who  seeks  to  recover  of  common  carriers 

1  51  K.  H.  at  p.  29.  6  Supra,  p.  199,  et  seq. 

2  3  H.  &  C.  771,  as  quoted  in  Gray  v.  «  At  p.  357. 
Jackson,  at  p.  22.  7  22  Wall,  at  p.  131. 

8  51  N.  H.  9.  8  51  N.  H.  9. 

*  48  N.  H.  339.  9  48  N.  H.  at  p.  363. 

VOL.  II.  14 


210  COMMENTARIES   ON   SALES.  [BOOK   III. 

for  the  loss  of  his  goods,  I  cannot  but  regard  as  a  wide  departure 
from  the  general  doctrine  of  the  common  law  on  this  subject ;  and 
nothing  is  plainer  than  the  duty  of  courts  to  apply  the  general 
principles  of  the  common  law  to  the  new  circumstances  which 
are  introduced  by  changes  in  the  manner  of  transacting  any 
business." 

Common  law  is  simply  common  sense  ;  "  the  very  perfection  of 
reason ; "  and  we  think  the  doctrine  established  by  the  English 
decisions,  and  by  the  great  mass  of  the  cases  in  this  country 
which  are  decided  in  general  harmony  with  them,  is  the  result 
of  sound,  sensible,  legal  construction  of  the  "  special  contracts," 
whether  express  or  implied,  in  such  cases.  And  in  Gray  v.  Jack- 
son,i  notwithstanding  the  labored  argument  in  the  case  to  show 
that,  in  this  class  of  cases,  the  question  is  altogether  a  question 
of  fact  for  the  jury,  and,  therefore,  that  the  particular  case  is 
absolutely  concluded  by  the  finding  of  the  jury ;  the  court,  after 
all,  admit  that  this  is  wrong,  and  that  the  reference  to  Mus- 
champ's  Case  by  Judge  Redfield,  of  the  question  being  "  chiefly 
a  matter  of  fact,"  takes  "  into  account  the  idea  that  the  question 
was,  of  course,  subject  to  the  general  and  elementary  rules  of  law 
upon  tvhich  all  contracts  rest.^^  Precisely  so.  If,  on  any  view  of 
the  facts  and  circumstances  which  the  jury  can  reasonably  take, 
their  finding  legally  can  be  sustained,  it  will  be  ;  otherwise,  it  will 
be  reversed. 

In  Gray  v.  Jackson, ^  a  package  was  delivered  for  conveyance  to 
Reading,  Massachusetts,  which  was  received  by  the  defendants  for 
conveyance,  the  plaintiff  paying  and  the  defendants  receiving  one 
entire  sum  for  the  entire  conveyance.  We  think  this,  in  laiv,  as 
much  implies  a  contract  by  the  defendants,  carriers,  to  carry  the 
package  to  Reading,  as  the  sale  of  a  parcel  of  goods  for  a  specific 
price  implies,  in  law,  the  claim,  by  the  vendor,  of  a  right  to  sell 
the  entire  parcel.  We  think  the  presumption  of  law  is  as  clear 
in  the  one  case  as  in  tiie  other.  The  New  Hampshire  court  in 
Gray  v.  Jackson  ^  held  otherwise ;  ostensibly  on  the  ground  that 
principles  of  law  have  nothing  to  do  with  such  a  case ;  but  that 
(in  this  class  of  cases,  at  least)  the  question  is  entirely  one  for  the 
jury,  and  let  them  find  as  they  may  their  finding  is  conclusive. 

If  this  were  law,  there  would  be  no  legal  "  rule  "  at  all  appli- 
cable to  such  cases ;  and  the  numerous  references  by  the  courts 
and  text-writers  in  this  country  to  the  English  rule  and  the  Amer- 
ican rule,  with  reference  to  the  assumed  differences  between  the 
English  and  many  of  the  American  cases  on  the  principles  of  law 

1  51  N.  H.  at  p.  25.  »  jj)id. 

2  51  N.  H.  9. 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OP  GOODS.      211 

governing  them,  would  be,  of  itself,  altogether  absurd.  We  think, 
however,  it  is  obvious,  that  not  only  on  the  facts  in  Gray  v.  Jack- 
son ^  is  the  decision  itself  not  sustained  by  the  previous  New  Hamp- 
shire cases,  and  by  the  almost  solid  mass  of  the  other  cases  on 
the  subject,  whether  in  England  or  the  United  States  ;  but  that  it 
is  equally  obvious,  on  principle  and  authority,  that  the  ground  of 
the  decision,  that  the  question  involved  is  not  one  of  law  at  all,  is 
entirely  unfounded.  We  think  the  evidence  in  that  case  does  show 
that  a  legal  contract  was  entered  into,  and  that  there  is  not,  in  the 
case,  as  a  matter  of  law,  a  scintilla  of  evidence  showing  that  any 
other  contract  was  entered  into  than  that  of  carrying  the  parcel 
to  Reading,  for  the  carriage  of  which  a  specific  agreed  price  was 
paid  and  received.  And  we  think,  further,  as  a  clear  principle 
of  law,  from  the  facts  in  that  case,  that  if  such  agreed  price  had 
not  been  paid,  the  defendants,  on  the  carriage  of  the  parcel  to 
Reading,  could  unquestionably  have  sustained  an  action  against 
the  plaintiff  for  the  agreed  through  j)rice  of  the  carriage  to  Read- 
ing on  their  one  entire  contract,  which  was  a  contract  for  such 
carriage  to  Reading,  for  such  price,  or  it  was  nothing. 

We  think  the  law  of  The  Nashua  liock  Co.  v.  The  Worcester  & 
Nashua  R.  R.  Co.^  much  sounder  than  that  of  Gray  v.  Jackson,^ 
which  latter  case,  we  think,  in  assuming  that  there  is  no  law 
whatever  in  the  matter,  itself  undertakes  to  establish,  as  a  prin- 
ciple of  law,  that  which  in  effect  it  declares  is  not  a  principle  of 
law  at  all,  but  simply  a  matter  of  fact.* 

In  McCarthy  v.  Terre  Haute,  &c,  R.  R.  Co.,^  the  question,  as 
usual,  is  treated  as  a  mixed  matter  of  law  and  fact,  and,  in  this 
case,  the  verdict  of  the  jury  was  set  aside,  the  court  seeing  "  no  evi- 
dence in  the  case  from  which  a  fair  inference  of  a  contract  to 
carry  beyond  Indianapolis  can  be  drawn."  In  this  case,  as  in  so 
many  of  the  cases,  the  law  as  decided  in  England  is  misstated  as 
being  one,  in  effect,  exclusively  in  law,  and  not  of  fact  at  all,  — 
"  that  the  first  carrier  is  liable  as  a  carrier,  and  is  exclusively  lia- 
ble to  the  end  of  his  route,  though  the  goods  are  carried  to  their 
destination  over  connecting  lines  in  which  the  first  ccTrrier  is  not 
interested."  This,  on  the  one  hand,  is  as  bad  as  the  decision  in 
Gray  v.  Jackson  ^  is,  on  the  other.  The  English  cases  hold  that 
the  carrier  may  make  himself  liable  hy  a  contract,  express  or  im- 
plied, for  the  carriage  beyond  his  own  immediate  route,  and 
whether  he  do  so  or  not  is  a  question  of  fact  for  the  jury,  under 
the  proper  instructions  of  the  court ;  and,  as  usual,  if  on  the  find- 

1  51  N.  H.  9.  39.     The  case,  we  think,  is  very  clearly 

2  48  N.  H.  339.  self-destructive. 

8  51  N.  H.  9.  09  Mo.  Ap.  159, 

*  See  this  very  clearly  at  pp.  38  and  *  51  N.  H.  9. 


212  COMMENTARIES    ON   SALES.  [bOOK   III. 

iiio-  of  the  jury,  there  is  evidence  that  will  sustain  their  finding 
and  the  instructions  of  the  court,  the  verdict  will  be  sustained. 
Otherwise,  it  will  be  set  aside.  The  question  is,  therefore,  one  of 
those  which  is  usually  designated  as  a  mixed  one  of  law  and  fact. 
And  as  hold  the  English  cases,  so,  as  we  have  exhaustively 
shown,  in  this  elaborate  examination  of  the  question,  also  hold 
the  American.  As  in  England,  so  in  this  country,  the  carrier 
may  contract,  expressly  or  impliedly,  for  the  conveyance  of  goods 
or  of  passengers  beyond  his  own  immediate  route,  and  whether  he 
do  so  or  not  is  here,  as  there,  a  question  of  the  construction  of  the 
particular  contract  in  the  case.  True,  Rolfe,  B.,  did,  in  effect,  state, 
that  in  the  receipt  of  goods  for  carriage,  marked  for  a  specified  des- 
tination, there  was  implied  in  that  fact  alone,  primd  facie,  that  from 
which  a  jury  would  be  warranted  in  inferring  a  contract  to  carry 
them  to  said  designated  point.  But  the  inference  from  that  fact 
alone,  as  Lord  Abinger  stated,  was  simply  prima  facie;  not 
conclusive.  In  the  case  itself  there  was  an  agreed  through  rate 
for  the  whole  distance,  and  other  strong  facts,  to  which  we  have 
made  repeated  reference  in  this  investigation  of  the  subject,  to 
strengthen  the  inference  resulting  from  the  one  fact  that  the 
goods  were  certainly  intended  to  be  carried  to  the  place  for 
which  they  were  marked.  On  the  other  hand  this  inference 
might  have  been  destroyed,  under  facts  from  which,  expressly  or 
impliedly,  a  different  contract  might  be  shown.  Practically,  as  a 
matter  of  fact,  the  one  fact  of  the  marking  of  the  goods,  as  an 
unsupported  inference  from  which  a  contract  is  to  be  implied, 
never  stands  alone.  When  the  goods  are  received  by  a  carrier, 
they  are  received  for  carriage.  When  received  for  carriage,  jor/ma 
facie  they  are  received  to  be  carried  to  the  place  for  which  they 
are  "  booked,"  or  to  which  they  are  marked.  If  the  carrier  so 
receiving  them  for  carriage,  under  a  contract  to  carry  them,  by 
himself  or  his  agents,  to  the  place  for  which  they  are  marked, 
booked,  or  way-billed  (either  of  these  last  two  adding  to  or  taking 
from  the  inference  from  the  marking),  charges  a  one  through 
price  for  such  carriage  to  the  ultimate  designated  place,  where 
they  are  there  (as  in  Muschamp  v.  Lancaster  Ry.)^  to  be  deliv- 
ered, by  the  one  contracting  carrier  or  his  agent,  to  the  ship- 
per, or  the  consignee  ;  then,  there  being  no  express  contract 
otherwise  in  the  matter,  and  there  being  no  other  facts  in  the 
case  to  rebut  the  inference  resulting  from  all  of  these  facts,  — 
and  they  were  all  in  the  Muschamp  Case,  as  in  the  concur- 
rent New  York  case,  —  the  court,  we  take  it,  under  the  general 
American  as  well  as  under  all  the  English  decisions,  would  be 

1  8  M.  &  W.  421. 


J 


PART  II.]    CONTRACTS  FOR  THROUGH  CARRIAGE  OP  GOODS.     213 

legally  justified  in  instructing  the  jury,  that,  if  they  so  found 
these  facts,  as  stated,  they  would  be  warranted  in  inferring  a  one 
entire  contract,  by  the  contracting  carrier,  to  carry  the  goods  he 
had  received  for  carriage,  by  himself  or  his  agents,  to  the  speci- 
fied place  to  and  for  which  such  goods  had  been  marked,  booked, 
way-billed,  freight-paid,  and  to  be  delivered.  And,  we  think, 
on  the  jury  so  finding,  in  accordance  with  all  these  facts,  the 
directions  of  the  judge  on  the  trial  and  the  finding  of  the  jury 
would  be  sustained  by  the  English  or  American  court  to  which 
the  question  of  the  instructions  and  finding  might,  as  a  matter 
of  law,  be  submitted  for  their  decision.  If,  on  the  other  hand, 
notwithstanding  the  marking,  the  goods  were  booked  or  way- 
billed  for  only  a  part  of  the  distance,  there  to  be  delivered  to 
another  carrier,  for  independent  carriage ;  or  freight  were  only 
paid  and  received  for  the  carriage  for  a  part  of  the  distance,  or 
there  were  any  other  circumstances  from  which  a  more  limited 
carriage  might  be  presumed,  than  to  the  point  for  which  the  goods 
were  marked,  as  the  place  of  their  ultimate  destination ;  then,  as 
in  so  many  of  the  cases,  as  we  have  shown,  both  English  and 
American,  the  prima  facie  inference  resulting  from  the  marking 
would  be  rebutted,  and  the  contract  for  a  more  limited  carriage 
than  the  entire  through  distance  would  be  implied. 

This,  we  think,  is  the  conclusion  of  the  whole  matter,  and  it  is 
equally  the  "  rule  "  of  law  in  the  United  States  as  in  England. 
Practically,  we  repeat,  the  mere  marking  alone  can  scarcely 
exist  in  any  case ;  and,  therefore,  undue  stress  has  been  laid  on 
the  implication  resulting  from  that  fact  alone.  Virtually,  in  none 
of  the  cases  in  England  or  here,  was  not  the  implication  from  that 
fact  strengthened  or  weakened  by  the  other  facts  in  the  case : 
"  While  a  railroad  company  cannot  be  compelled  to  transport  to  a 
point  beyond  its  own  line,  it  is  well  settled  that  it  may  lawfully 
contract  to  carry  persons  and  property  over  its  own  and  other 
lines  to  a  destination  beyond  its  own  route ;  and  when  such  a 
contract  is  made,  it  assumes  all  the  obligations  of  a  carrier  over 
the  connecting  lines  as  well  as  its  own.  In  such  cases  the  con- 
necting carriers  engaged  in  completing  the  carriage  are  deemed 
to  be  the  agents  of  the  first  carrier,  for  whose  negligence  and  de- 
fault the  contracting  carrier  becomes  liable.  .  .  .  Where  a  rail- 
road company  sells  a  through  ticket  for  a  single  fare  over  its  own 
and  other  roads,  and  checks  the  baggage  of  the  passenger  over 
the  entire  route,  more  is  implied,  it  seems  to  us,  than  the  mere 
acceptance  of  the  property  marked  for  a  destination  beyond  the 
terminus  of  its  own  line.  The  sale  of  a  through  ticket  and  the 
checking  of  the  baggage  for  the  whole  distance,  is  some  evidence 


214  COMMENTARIES   ON   SALES.  [BOOK   III. 

of  an  undertaking  to  carry  the  passenger  and  baggage  to  the  end 
of  the  journey.  The  contract  need  not  be  an  express  one,  but 
may  arise  by  implication  and  may  be  established  by  circum- 
stances, the  same  as  other  contracts."  ^  This  language  is  equally 
applicable  to  Muschamp  v.  Lancaster  Ry.,^  as  to  the  Kansas  case, 
and  establishes,  in  effect,  the  same  and  not  a  different  principle.^ 
Finally,  to  sum  up  :  It  is  competent  for  a  railway  company  to 
contract  to  carry  goods  beyond  their  own  immediate  route,  and  they 
very  frequently  do  so  contract.  Assuming  that,  with  such  power, 
so  frequently  exercised  by  them,  they  make  an  express  written 
contract  to  carry  goods  for  a  specified  destination,  for  one  through 
rate  of  freight,  that  clearly  is  a  contract  which  can  be  enforced 
against  them,  whether,  which  is  clearly  immaterial  in  the  case  of 
such  an  express  written  contract,  the  specified  destination  be  at 
a  point  on  their  own  immediate  line  of  railway  or  not.  Suppose, 
then,  that,  instead  of  such  an  express  written  contract,  they  re- 
ceive goods  for  carriage,  marked  for  a  specified  destination,  fix 
a  specific  through  rate  for  the  entire  distance,  to  be  paid  by  the 
consignee  at  the  ultimate  designated  point  to  which  the  goods  are 
to  be  carried,  and  where  the  consignee  is  to  be  present  to  receive 
the  goods  and  pay  the  freight ;  if  that  designated  point  is  on  their 
own  immediate  line,  does  it  not  imply  a  contract  to  carry  and  de- 
liver the  goods  there  ?  Clearly  so.  Then,  with  all  these  ingredi- 
ents, as  above  named,  if  the  point  is  beyond  their  own  immediate 
line,  is  there  not  a  similar  implication  ?  We  can  see  no  principle 
of  reasoning  by  which  any  other  conclusion  can  be  reached,  than 

1  The  Atchison,  &c.  R.  R.  Co.  v.  Ind.  505  ;  Detroit  &  Bay  City  Ry.  Co.  v. 
Roach,  35  Kan.  740,  743.  McKenzie,  43  Mich.  609 ;    Candee  v.  The 

2  8  M.  &  W.  421.  Pennsylvania   R.   R.    Co.    21    Wis.    582  ; 

3  For  additional  cases,  which  might  be  Schneider  v.  Evans,  25  Wis.  241 ;  Wahl 
almost  indefinitely  added  to,  see  Baltimore  v.  Holt,  26  Wis.  703  ;  Mosher  v.  The 
&  Ohio  R.  R.  Co.  V.  Campbell,  36  Ohio  Southern  Express  Co.,  38  Ga.  37;  South- 
St.  647,  658  ;  Peet  v.  Chicago  &  N.  W.  ern  Express  Co.  v.  Shea,  3.  519  ;  Cohen 
Ry.  Co.,  19  Wis.  118  ;  Grover  &  Baker  i'.  The  Southern  Express  Co.,  45  Ga. 
Sewing  Machine  Co.  v.  Missouri  Pacific  148;  Hawley  v.  Screeven,  62  Ga.  347; 
Ry.  Co.,  70  Mo.  672  ;  Chouteau  v.  Leech,  Central  Railroad  v.  Combs,  70  Ga.  533  ; 
18  Pa.  224;  The  Baltimore  &  Phila.  St.  Southwestern  Railroad  v.  Thornton,  71 
Co.  r.  Brown,  54  Pa.  77;  Hill  Manuf.  Co.  Ga.  61;  Little  v.  Semple,  8  Mo.  99; 
V.  Boston  &  Lowell  R.  R.  Corp.,  104  Carr  ■».  Steamboat  Michigan,  27  Mo.  196; 
Mass.  122  ;  McGregor  v.  Kilgore,  6  Ohio,  Coates  v.  The  United  States  Express  Co., 
359  ;  Check  v.  The  Little  Miami  R.  R.  45  Mo.  238 ;  Halliday  v.  The  St.  Louis,  &c. 
Co.,  7  Am.  Law  Reg.  427;  The  Cincin-  Rv.  Co.,  74  JIo.  159;  Wvman  v.  Chicago 
nati,  &c.  R.  R.  Co.  v.  Pontius,  19  Ohio  &' Alton  R.  R.  Co.,  4  Mo"  App.  35  ;  Mal- 
St.  221;  The  Baltimore  &  Ohio  R.  R.  Co.  lory  v.  Burrett,  1  E.  D.  Smith  (X.  Y.), 
V.  Green,  25  Md.  72 ;  Cincinnati,  &c.  234 ;  Schroeder  v.  The  Hudson  River 
R.  R.  Co.  V.  Spratt,  2  Duv.  (Ky.)  4;  R.  R  Co.,  5  Duer,  55;  Simmons  ».  Law, 
Bryan  v.  Memphis,  &c.  R.  R.  Co.,  11  8  Bosw.  213;  Quimby  v.  Vanderbilt,  17 
Bush,  597;  Wheeler  v.  San  Francisco  &  N.  Y.  306  ;  Ladue  v'  Griffith,  25  N.  Y. 
Ala.  R.  R.  Co.,  31  Cal.  46;  Pereira  v.  364;  Berg r.  The  Narragansett  Steamboat 
Central  Pacific  R.  R.  Co.,  66  Cal.  92;  The  Co.,  5  Daly,  394. 

Evansville,  &c.  R.  R,  Co.  v.  Marsh,   57 


PART  II.]   CONTRACTS  FOR  THROUGH  CARRIAGE  OF  GOODS.      215 

that  there  is.  All  of  the  assumed  ingredients,  then,  are  contained 
in  Muschamp  v.  Lancaster  Ry.,^  a  simple  case  which  has  been 
more  generally  misunderstood,  misstated,  and  distorted  than  any 
other  case  with  which  we  have  met. 

There  was  in  that  case  not  only  the  implication  of  a  one 
through  contract  arising  from  the  receipt  of  goods  for  carriage, 
marked  for  a  specified  place,  without  any  implication  of  the  con- 
tract for  carriage  being  for  any  other  terminus  than  that  ex- 
pressly designated  by  the  address  of  the  goods ;  but  there  was  in 
it  all  the  other  important  facts  we  have  named  above,  from  which 
a  one  entire  through  contract  was  to  be  implied.  And  yet  Mus- 
champ V.  Lancaster  Ry.  is  the  one  special  case  which  has  met 
with  such  wholesale  ill-founded  criticism  and  condemnation  in 
numerous  cases  which  have  been  decided  in  precisely  the  same 
way  as  that  badly-criticised  case  itself. 

1  8  M.  &  W.  421. 


216  COMMENTARIES   ON   SALES.  [BOOK  IV. 


BOOK   IV. 

STATUTE  OF  FRAUDS. 

Introductory. 

The  fourth  and  seventeenth  sections  of  the  Statute  of  Frauds  ^ 
relate  to  Sales,  and  are  as  follows  ;  — 

"  IV.  No  action  shall  be  brought  whereby  to  charge  any  exec- 
utor or  administrator  upon  any  special  promise,  to  answer  dam- 
ages out  of  his  own  estate  ;  (2)  or  whereby  to  charge  the  defendant 
upon  any  special  promise,  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another  person  ;  (3)  or  to  charge  any  portion  upon  any 
agreement  made  upon  consideration  of  marriage ;  (4)  or  upon  any 
contract  or  sale  of  lands,  tenements,  or  hereditaments,  or  any  in- 
terest in  or  concerning  them;  (5)  or  upon  any  agreement  that 
is  not  to  be  performed  within  the  space  of  one  year  from  the 
making  thereof ;  (6)  unless  the  agreement  upon  which  such  action 
shall  be  brought,  or  some  memorandum  or  note  thereof,  shall  be 
in  writing,  and  signed  by  the  party  to  be  charged  therewith,  or 
some  other  person  thereunto  by  him  lawfully  authorized." 

"  XVII.  No  contract  for  the  sale  of  any  goods,  wares,  and  mer- 
chandise, for  the  price  of  ten  pounds  sterling  or  upwards,  shall 
be  allowed  to  be  good,  except  the  buyer  shall  accept  part  of  the 
goods  so  sold,  and  actually  receive  the  same,  or  give  something 
in  earnest  to  bind  the  bargain,  or  in  part  of  payment,  or  that 
some  note  or  memorandum  in  writing  of  the  said  bargain  be  made 
and  signed  by  the  parties  to  be  charged  by  such  contract,  or  their 
agents  thereunto  lawfully  authorized." 

This  act  was  amended  by  9  Geo.  4,  c.  14,  known  as  "  Lord  Ten- 
terden's  Act,"  the  seventh  section  of  which,  after  reciting  the 
above  act  and  a  similar  act  passed  in  Ireland,  further  recites, 
"And  whereas  it  has  been  held  that  the  said  recited  enactments 
do  not  extend  to  certain  executory  contracts  for  the  sale  of  goods, 
which  nevertheless  are  within  the  mischief  thereby  intended  to 
be  remedied ;  and  it  is  expedient  to  extend  the  said  enactments 
to  such  executory  contracts  ; "  and  enacts,  "  That  the  said  enact- 

1  29  Car.  2.  c.  3. 


INTR.] 


STATUTE   OF   FRAUDS. 


217 


ments  sliall  extend  to  all  contracts  for  the  sale  of  goods  of  the 
value  of  ten  pounds  sterling  and  upwards,  notwithstanding  the 
goods  may  be  intended  to  be  delivered  at  some  future  time,  or 
may  not  at  the  time  of  such  contract  be  actually  made,  procured, 
or  provided,  or  fit  or  ready  for  delivery,  or  some  act  may  be 
requisite  for  the  making  or  completing  thereof,  or  rendering  the 
same  fit  for  delivery."  ^ 


1  "  It  is  now  well  settled  that  the  17th 
section  of  the  statute  of  frauds,  29  Car.  2, 
c.  3,  and  the  7th  section  of  "Lord  Tenter- 
den's  Act,  9  Geo.  4,  c.  14,  are  to  be  read 
togfither.  Now,  the  last- mentioned  enact- 
ment provides  that  the  17th  section  of  the 
former  act  shall  extend  to  all  contracts  for 
the  sale  of  goods  of  the  vcduc  of  £10  ster- 
ling and  upwards,  notwithstanding  the 
goods  may  be  intended  to  be  delivered  at 
some  future  time,  etc.  The  effect  of  that 
enactment,  therefore,  is  to  substitute 
'  value '  for  '  price '  in  the  former  stat- 
ute, and  to  adopt  an  uniform  rule  in  all 
cases.  The  17th  section  of  the  statute  of 
frauds  must  consequently  now  be  read 
thus  :  '  No  contract  for  the  sale  of  any 
goods,  wares,  and  merchamlises,  of  the 
value  of  £10  sterling  or  upwards,  shall 
be  allowed  to  be  good,  except  the  buyer 
shall  accept  part  of  the  goods  so  sold,  and 
actually  receive  the  same,  or  give  some- 
thing in  earnest  to  bind  the  bargain  or  in 
part  of  payment,  or  that  some  note  or 
memorandum  in  writing  of  the  said  bar- 
gain be  made  and  signed  by  the  parties 
to  be  charged  by  such  contract,  or  their 
agents  thereunto  lawfully  authorized.' " 
Per  Jervis,  C.  J.,  in  Harman  v.  Reeve,  18 
C.  B.  587,  595.  In  Scott  v.  The  Eastern 
Counties  Ry.  Co.,  12  M.  &  W.  33,  it  was 
also  held  that  these  two  statutes  must  be 
construed  as  incorporated  together,  and 
that,  therefore,  an  order  for  goods  made 
and  for  otliers  to  be  made  forms  one  entire 
contract,  and  the  acceptance  of  the  former 
goods  will  take  the  case  out  of  the  statutes 
as  regards  the  latter  also.  "  If  I  make  a 
contract  for  goods  already  made,  and  goods 
to  be  made,  and  I  accept  the  goods  made, 
it  shows  that  I  made  the  contract,  which 
is  what  the  act  means.  The  transaction 
constituted  but  one  contract.  There  is  no 
distinction  between  this  case  and  that  of  a 
party  who  goes  into  a  shop  and  buys  fifty 
different  articles  at  the  same  time.  It  is 
clear  that  such  a  person  does  not  make 
fifty  ditterent  contracts.  If  a  man  enters 
into  an  entire  agreement  for  goods  made, 
and  for  others  to  be  made,  liis  accepting 
part  of  the  goods  made  is  evidence  of  his 
having  entered  into  the  agreement.  That 
is  the  true  object  and  meaning  of  the 
statute.  The  articles  bargained  to  be 
made  are  treated  for  this  purpose  as  goods 


actually  made,  although  they  are  not  in 
existence  at  the  time  of  the  agieement." 
Per  Alderson,  B.  Ibid.  36,  38.  For  cases 
before  the  passage  of  9  Geo.  4,  which  led 
to  the  passage  of  that  act,  see  Towers  v. 
Osborne,  1  Str.  506  ;  Clayton  v.  Andrews, 
4  Burr.  2101  ;  Groves  v.  Buck,  3  M.  &  S. 
178;  Eondeau  v.  Wyatt,  2  H.  Bl.  63; 
Garbutt  v.  Watson,  5  B.  &  Aid.  613. 
Where  a  joint  order  is  given  for  several 
classes  of  goods,  the  acceptance  of  one  class 
is  a  part  acceptance  of  the  whole,  within 
section  17  of  the  statute.  Sernhle,  that  if 
the  purchaser  of  goods  has  used  (in  the 
opinion  of  the  jury)  moie  of  them  than 
was  necessary  for  experiments,  that  does 
not  amount  to  an  acceptance  within  the 
statute.  Elliott  v.  Thomas,  3  M.  &  W. 
170.  In  Street  v.  Blay,  2  B.  &  Ad.  463, 
Lord  Tenterden  says,  in  delivering  the 
judgment  of  the  court:  "Whatever  may 
be  the  right  of  the  purchaser  to  return  a 
warranted  article  in  an  ordinary  case,  there 
is  no  authority  to  show  that  lie  may  return 
it  where  the  purchaser  has  done  more  than 
was  consistent  with  the  puipose  of  trial." 
A.  went  to  the  shop  of  B.,  linen-drapers, 
and  contracted  for  tlie  purchase  of  various 
articles,  each  of  which  was  under  the  value 
of  £10,  but  the  whole  amounted  to  £70. 
A  separate  price  for  each  article  was  agreed 
upon.  Some  were  marked  by  A.  with  a 
pencil,  others  were  measured  in  his  pres- 
ence, and  others  he  assisted  to  cut  from 
larger  bulks.  He  then  desired  that  an 
account  of  the  whole  might  be  sent  to  his 
house,  and  went  away.  A  bill  of  parcels 
was  accordingly  sent,  together  with  the 
goods,  when  A.  refused  to  accept  them. 
It  was  held  that  this  was  all  one  contract, 
and  therefore  within  section  17  of  the 
statute,  but  that  there  was  no  delivery 
and  acceptance  of  any  of  the  goods  so  as 
to  take  the  case  out  of  tlie  operation  of 
that  section.  Baldey  v.  Parker,  2  B.  &  C. 
37.  In  Hodgson  v.  Le  Bret,  1  Camp.  233, 
it  was  held  by  Lord  Ellenborough  tluit  if. 
the  purchaser  of  goods  at  the  tiuie  of  the 
sale  write  his  name  upon  a  particular  arti- 
cle, with  intent  to  denote  tliat  h(!  lias  pur- 
chased it,  and  to  appropriate  it  to  his  own 
use,  this  is  enough  to  take  tlie  sale,  as  to 
the  article  written  upon,  out  of  the  stat- 
ute, but  not  as  to  other  ai'tieles  botiglit  at 
the  same  time.     It  is  difficult  to  see  upon 


218 


COMMENTARIES   ON   SALES. 


[book  IV, 


what  ground  this  coukl  be  held,  there  be- 
ing no  "actual  receipt"  of  any  part  of 
the  goods,  nor  any  note  or  memorandum 
of  the  contract  even  as  to  the  article  upon 
whicli  the  purchaser  had  written  his  name. 
The  case  is  overruled  by  Baldey  v.  Parker, 

2  B.   &  C.  37.      See    Elliott   v.  Thomas, 

3  M.  &  W.  177,  ;^er  Parke,  B.  If  there 
had  been  the  acceptance  and  actual  re- 
ceipt, in  Hodgson  v.  Le  Bret,  1  Camp. 
233,  of  any  of  the  articles  purchased,  then, 
as  the  contract  was  entire,  such  acceptance 
and  receipt  would  have  taken  all  the  goods 
purchased  out  of  the  statute.  But  in  Price 
V.  Lea,  1  B.  &  C.  156,  where  the  contract 
was  not  entire,  the  receipt  and  acceptance 
of  a  part  of  the  goods  had  no  effect  as  to 
other  goods  not  coming  within  the  same 
contract.  There  the  traveller  of  A.  &  Co. 
in  London,  having  called  upon  B.  in  the 
country  for  orders,  B.  gave  an  absolute 
order  for  a  quantity  of  cream  of  tartar, 
and  offered  to  take  a  quantity  of  lac  dye 
at  a  certain  price.  The  traveller  said  the 
price  was  too  low,  but  that  he  would  write 
to  his  principals,  and  if  B.  did  not  hear 
from  them  in  one  or  two  days  he  might 
consider  that  his  offer  was  accepted.  A. 
&  Co.  never  wrote  to  B.,  but  sent  all  the 
goods.  It  was  held  that  this  was  not  a 
joint  order  for  them  all,  so  as  to  make  the 
acceptance  of  the  cream  of  tartar  the  ac- 
ceptance of  the  lac  dye  also,  within  the 
statute.  Holroyd,  J.,  said:  "A  contract 
for  the  cream  of  tartar  was  made  between 
the  defendant  and  the  traveller,  but  the 
agreement  for  the  residue  cannot  be  con- 
sidered as  complete  until  the  time  allowed 
to  the  plaintififs  for  deliberation  had  ex- 
pired. There  was  not,  then,  one  contract 
for  both  the  articles,  so  as  to  make  the 
acceptance  of  one  the  acceptance  of  the 
whole."  The  marginal  note  in  Thompson 
V.  Maceroni,  3  B.  &  C.  1,  is  very  mislead- 
ing. It  is  there  said  :  "  Where  goods  of 
the  value  of  £144  were  made  to  order,  and 
remained  in  the  possession  of  the  vendor 
at  the  request  of  the  vendee,  with  the  ex- 
ception of  a  small  part  which  the  latter 
took  away,  —  Held,  that  there  was  no  ac- 
ceptance of  the  goods  within  the  statute  of 
frauds,  section  17."  The  court  do  in  fact 
say  this,  but  the  more  material  part  of 
what  they  say  is  omitted.  What  the  court 
said  was  :  "That  there  was  no  actual  ac- 
ceptance of  these  goods  by  the  buyer  within 
the  17th  section  of  the  statute  of  frauds, 
and  that  tlie  plaintiff  was  not  entitled  to 
recover  on  the  count  for  goods  sold  and  de- 
livered." There  are  no  such  words  in  the 
statute  as  "  actual  acceptance."  The  lan- 
guage is,  "  except  the  buyer  shall  accept 
part  of  tJie  goods  so  sold,  and  actually  re- 
ceive the  same," — the  acceptance  being 
one  thing  and  the  actual  receipt  quite 
another.     Instead  of  "no  actual  accept- 


ance "  the  court  meant  that  there  was  no 
"  actual  receipt "  of  the  goods.  The  buyer 
here  did,  in  the  very  language  of  the  stat- 
ute, "accept  part  of  the  goods  so  sold,  and 
actually  receive  the  same,"  and  the  require- 
ments of  the  statute  were  met,  so  that  a 
count  for  goods  bargained  and  sold,  or  on 
the  special  contract,  could  have  been  sus- 
tained. 1  Ch.  PI.  (16  Am.  ed.)  356.  But 
in  Thompson  v.  Maceroni,  3  B.  &  C.  1,  the 
defendant  had  been  held  to  bail  upon  an 
affidavit  for  goods  sold  and  delivered.  Bail 
above  were  put  in  and  justified.  After  is- 
sue was  joined  a  special  count  for  not  de- 
livering a  bill  of  exchange  was  added.  At 
the  trial  evidence  was  given  of  an  order 
for  the  goods,  and  of  their  having  been 
made  pursuant  to  the  order,  and  that  the 
goods  remained  in  the  plaintitTs  posses- 
sion at  the  request  of  the  defendant,  and 
were  of  the  value  of  £144  ;  that  the  de- 
fendant took  away  a  small  part,  of  the 
value  of  £2  10s.  No  bill  was  given,  and 
the  plaintiff,  at  the  trial,  obtained  a  ver- 
dict for  £144  on  the  count  for  not  deliver- 
ing the  bill.  A  rule  nisi  was  obtained  for 
entering  an  exonerelur  on  the  bail-piece,  on 
the  ground  that  the  plaintiff  had  recov- 
ered on  the  special  count  for  not  deliver- 
ing the  bill.  Counsel  for  the  defendant 
showing  cause  contended  that  there  was 
sufficient  evidence  to  entitle  the  plaintiff 
to  recover  on  the  count  for  goods  sold  and 
delivered.  But  there  having  been  no  ac- 
tual receipt  of  the  goods,  it  was  properly 
held  that  the  count  for  goods  sold  and  de- 
livered would  not  lie,  and  the  rule  was 
made  absolute.  But  the  verdict  on  the 
special  count  was  not  attacked  or  ques- 
tioned, as  that  count  was  sustainable, 
notwithstanding  the  statute,  there  having 
been  an  accejitance  and  actual  receijtt  of  a 
part  of  the  goods.  Parke,  B.,  in  Elliott 
V.  Thomas,  3  M.  &  W.  at  p.  177,  says  of 
Thompson  v.  Maceroni,  3  B.  &  C.  1:  "The 
court  held  that  the  acceptance  of  a  small 
part  of  goods  to  the  value  of  £144,  made 
to  order,  was  not  sufficient  to  enable  the 
seller  to  recover  against  the  buyer  for  the 
price  of  the  whole  as  for  goods  sold  and 
delivered.  The  court  there  saj%  in  effect, 
that  there  was  no  proof  of  actual  delivery, 
nor  such  proof  of  actual  acceptance  as  to 
take  the  case  out  of  the  statute  of  frauds, 
i.  e.,  the  defendant  had  not  accepted  the 
whole,  so  that  a  count  for  goods  sold  and  de- 
livered  could  be  trmintained  for  the  whole. 
That  case  seems  to  me  to  have  turned 
entirely  on  the  form  of  the  action  ;  the 
plaintiff  could  not  succeed  unless  there 
was  a  deliver}'  of  the  whole,  or  at  leivst  an 
actual  acceptance  and  receipt  of  the  whole, 
so  as  to  be  equivalent  to  a  delivery."  The 
old  case  of  Goodall  v.  Skelton  (a.  d.  1794), 
2  H.  Bl.  316,  is  to  the  same  effect. 
This  was  an  action  for  goods  sold  and  de- 


J 


INTR.] 


STATUTE   OF   FRAUDS. 


219 


livered,  in  which  a  verdict  was  found  for 
the  phiintifF,  with  liberty  for  the  defen- 
dant to  move  for  a  new  trial  or  a  nonsuit, 
in  case  the  court  should  be  of  opinion  that 
the  action  could  not  be  maintained.  The 
material  facts  were  that  the  plaintiff  had 
agreed  to  sell  a  quantity  of  wool  to  the 
defendant,  a  shilling  earnest  being  paid  on 
the  part  of  the  defendant  to  bind  the  bar- 
gain. The  wool  was  packed  in  cloths  fur- 
nished by  the  defendant  for  that  purpose, 
and  left  at  a  hovel  belonging  to  the  plain- 
tiff, and  the  defendant  was  to  send  his 
waggon  in  a  few  days  to  take  it  away.  But 
while  the  defendant's  servant  was  weigh- 
ing and  ]iacking  it,  the  defendant  proposed 
to  the  plaintiff  to  fix  the  time  when  the 
waggon  should  come,  to  which  the  plaintiff 
replied  that  ' '  it  should  not  go  off  his 
premises  till  he  had  the  money  for  it." 
The  court  held  that  the  action  would  not 
lie,  and  the  rule  for  a  nonsuit  was  made 
absolute.  So,  in  Simmons  v.  Swift,  5  B. 
&  C.  857,  where  the  owner  of  a  stack  of 
bark  entered  into  a  contract  to  sell  it  at  a 
certain  price  per  ton,  and  the  purchaser 
agreed  to  take  and  pay  for  it  on  a  day 
specified,  and  a  part  was  afterwards  weighed 
and  delivered  to  him  ;  it  was  held  that  an 
action  for  goods  sold  and  delivered,  could 
not  be  maintained  for  the  residue.  And 
in  Boulter  v.  Arnott,  3  Tyrwh.  267,  the 
distinction  is  still  more  clearly  taken. 
The  action  was  for  goods  sold  and  deliv- 
ered. At  the  trial  it  appeared  that  the 
plaintiff  had  bought  from  the  defendant  a 
quantity  of  cigars,  on  ready  money  terms  ; 
the  plaintiff  having  refused  to  give  credit. 
The  cigars  were  packed  at  the  plaintifTs 
house  in  the  defendant's  boxes,  he  prom- 
ising to  call  in  a  day  or  two  to  pay  for 
them  and  take  them  away.  The  plaintiff 
was  nonsuited,  on  the  ground  that  no  de- 
livery was  proved,  and  that  there  was  no 
count  for  goods  bargained  and  sold  ;  leave 
being  reserved  for  him  to  move  to  enter  a 
verdict  for  the  price  of  the  cigars.  The 
nonsuit  was  sustained ;  Lord  Lyndhurst 
saying  :  "  Whatever  was  done  as  to  pack- 
ing these  articles,  mu.st  be  taken  with 
reference  to  the  contract  of  sale,  which 
was  for  ready  money.  Now  that  contract 
imported  that  the  purchaser  was  to  pay 
the  money  on  the  delivery  of  the  goods  ; 
therefore  it  could  never  be  intended  that 
by  the  packing  them  in  the  defendant's 
boxes  on  the  plaintiffs  premises,  they 
should  then  (lass  into  the  defendant's  pos- 
session by  delivery  without  payment  of 
the  money.  Besides,  it  appears  here  that 
the  cigars  were  not  to  be  taken  possession 
of  by  the  defendant  till  paid  for.  Had  the 
declaration  contained  a  count  for  goods  ha,r- 
gained  and  sold,  the  plaintiff  might  have 
recovered."  But  where  goods  are  ponder- 
ous, and  incapable  of  being  handed  over 


from  one  to  another,  there  need  not  be  an 
actual  delivery  ;  but  it  may  be  done  by 
that  which  is  tantamount,  such  as  the 
delivery  of  the  key  of  a  warehouse  in  which 
the  goods  are  lodged,  or  by  d  livery  of 
other  indicia  of  property.  On  this  princi- 
ple it  was  held  in  Chaplin  v.  Rogers,  1 
East,  192,  after  a  bargain  and  sale  of  a 
stack  of  hay  between  the  parties  on  the 
spot,  evidence  that  the  vendee  actually 
sold  part  of  it  to  another  person  (by  whom, 
though  against  the  vendee's  approbation, 
it  was  taken  away),  is  sufficient  to  warrant 
the  jury  in  finding  a  delivery  to  and  ac- 
ceptance by  the  vendee,  thereby  taking 
the  case  out  of  the  statute.  In  An<lerson 
V.  Scott,  1  Camp.  235,  n.,  which  was  a 
special  assumpsit  for  the  non-delivery  of 
wine  bought  by  the  plaintiff  of  the  defen- 
dant, it  appeared  that  the  plaintiff  went 
into  the  defendant's  cellar  and  selected 
several  pipes  of  wine,  for  which  he  agreed, 
by  parol,  to  pay  a  certain  price.  The 
spills  or  pegs  by  which  the  wiiie  is  tasted, 
were  then  cut  off ;  plaintiff's  initials  were 
marked  on  the  casks  by  defendants'  clerk 
in  his  presence,  and  plaintiff  took  the  gauge 
numbers.  It  was  objected  that  this  sale 
was  within  the  statute  of  frauds  ;  but  Lord 
Ellenborough  held,  that  the  cutting  off  the 
spills,  and  the  marking  of  plaintiff's  ini- 
tials on  the  cask  by  defendants'  agent,  in 
presence  of  all  the  parties,  amounted  to  a 
delivery.  It  was  then  contended  that  this 
proved  the  contract  laid  in  the  declaration 
to  have  been  performed  ;  that  the  plaintiff, 
while  complaining  of  the  non-delivery  of 
the  wine,  had  himself  proved  that  it  had 
been  delivered.  But  Lord  EUeuborough 
held,  that  although  there  had  been  an  in- 
cipient delivery,  sufficient  to  take  the  case 
out  of  the  statute  of  frauds,  yet  that  de- 
livery not  having  been  perfected,  plaintiff 
had  a  right  to  his  action  to  recover  dam- 
ages for  the  non-completion  of  his  contract. 
Again,  in  Dodsley  v.  Varley,  12  A.  «&  E. 
832,  the  defendant  having  bargained  with 
the  plaintiff  for  the  purchase  of  wool  from 
plaintiff  at  a  certain  price,  removed  it  to 
a  warehouse  used  by  defendant  for  that 
purpose,  but  belonging  to  a  third  party. 
There  the  wool  was  weighed  and  packed  in 
sheeting  of  the  defendants.  The  course  of 
dealing  was  that  the  wool  remained  on 
those  premises  till  |)aid  for.  It  was  held 
that  this  was  a  sufficient  delivery  and  ac- 
ceptance of  the  goods  within  the  statute, 
to  ground  an  action  for  goods  sold  and  de- 
livered ;  that  the  defendant  was  in  actual 
possession  of  the  wool  at  the  warehouse  as 
soon  as  it  was  weighed  and  packed  ;  that 
it  was  thenceforward  at  his  risk,  and,  if 
burnt,  must  have  been  ])aid  for  by  him. 
That,  consistently  with  this,  the  j)laintifF 
had,  not  what  is  commonly  called  a  'lien, 
deteiminable  on  the  loss  of  possession,  but 


220 


COMMENTARIES   ON   SALES. 


[book   IV. 


a  special  interest,  sometimes  but  improp- 
erly called  a  lien,  growing  out  of  his  origi- 
nal ownership,  independent  of  the  actual 
possession,  and  consistent  with  the  prop- 
erty being  in  the  defendant.  This  he 
retained  in  respect  of  the  term  agi'eed  on, 
that  the  goods  should  not  be  removed  to 
their  ultimate  place  of  destination  before 
payment ;  this  special  interest  being  con- 
sistent with  the  possession  having  passed 
to  the  buyer,  so  that  there  may  have  been 
a  delivery  to,  and  actual  receipt  by  him. 
But  in  Maberley  v.  Sheppard,  10  Bing. 
99,  the  defendant  employed  the  plaintiff 
to  construct  a  waggon,  and  while  the  ve- 
hicle was  in  the  plaintiff's  yard  unfinished, 
the  iron  work  for  the  waggon  was  pur- 
chased by  the  defendant  of  another  person, 
who  assisted  the  plaintiff's  men  in  putting 
it  on,  and  charged  the  defendant  for  his 
time.  The  defendant  also  purchased  a  tilt 
from  another  person,  which  was  afterwards 
carried  to  the  plaintiffs  yard  and  fixed  by 
his  men  on  tlie  waggon.  These  things 
liaving  been  done  before  the  waggon  was 
finished,  and  there  being  no  proof  of  actual 
delivery,  the  plaintiff  was  nonsuited.  The 
court  sustained  the  nonsuit  on  the  ground 
that  the  acts  were  done  merely  while  the 
work  was  in  progress,  and  not  after  the 
waggon  was  finished  and  capable  of  being 
delivered.  Tindal,  C.  J.,  in  delivering  the 
judgment  of  the  court,  said:  "There  are 
decisions  which  go  the  length  of  holding, 
that  as  long  as  the  vendor  retains  his  right 
of  lien  over  the  whole  of  the  commodity 
sold,  there  has  been  no  such  delivery  and 
acceptance  as  the  statute  intended.  And 
again,  that  unless  there  has  been  a  deliv- 
ery of  the  goods  by  the  vendor,  with  an 
intention  of  vesting  the  right  of  posses- 
sion in  the  vendee,  and  an  actual  accept- 
ance b)'^  the  latter,  with  an  intention  of 
taking  possession  as  owner,  the  statute  is 
not  satisfied  ;  and,  undoubtedly,  the  pres- 
ent case  cannot  be  held  to  fall  within  the 
compass  of  either  of  those  decisions.  For 
the  plaintiff  retained  his  lien  upon  the 
waggon,  and  there  was  nothing  in  the 
facts  that  denoted  any  intention  either  to 
deliver  or  to  accept.  The  circumstances 
of  this  case  certainly  leave  it  open  to  doubt 
whether  the  statute  has  been  complied 
with  or  not  ;  but  we  think  it  is  the  duty 
of  the  plaintiff  to  free  the  case  from  all 
doubt,  and  where  any  remains,  that  it  is 
safer  to  adhere  to  the  plain,  intelligible 
words  of  the  statute,  which  point  as  clearly 
as  words  can  to  an  actual  delivery,  and  an 
actual  receiving  of  part  or  the  whole  of  the 
goods  sold.     Upon  this  ground,  we  hold 


that,  in  the  present  case,  the  requisites  of 
the  statute  have  not  been  complied  with, 
and  that  the  rule  for  setting  a^iide  the  non- 
suit and  entering  a  verdict  for  the  plain- 
tiff must  be  discharged."  In  Phillips  v. 
Bistolli,  2  B.  &  C.  511,  the  ijlaintiff,  who 
was  an  auctioneer,  put  up  for  sale,  among 
several  other  articles,  a  pair  of  ear-rings, 
one  of  the  conditions  of  sale  being  that  the 
purchaser  should  pay  thirty  per  cent,  upon 
being  declared  the  highest  bidder,  and  the 
residue  of  the  price  before  the  goods  were 
removed.  The  defendant  was  a  foreigner, 
and  did  not  fully  understand  the  English 
language  ;  but  he  was  in  the  habit  of  at- 
tending the  plaintiffs  sales,  and  purchas- 
ing goods.  The  ear-rings  in  question  were 
knocked  down  to  him  as  the  highest  bid- 
der, at  the  price  of  eightj'-eight  guineas. 
They  were  immediately  delivered  to  him, 
and  he  received  them  without  making  any 
objection.  After  they  had  been  in  his 
hands  a  few  minutes,  a  person  who  inter- 
preted for  him  said  to  the  plaintiff  that 
the  defendant  had  bidden  for  the  ear-rings 
under  a  mistaken  idea  that  they  were 
knocked  down  to  him  for  forty-eight 
guineas.  The  plaintiff  said  that  the  last 
bidding  had  been  mentioned  three  times. 
The  defendant  then  returned  the  ear- 
rings. The  plaintiff,  however,  refused  to 
take  them  back,  but  said  he  would  keep 
them  on  defendant's  account.  It  was  ob- 
jected on  the  trial,  on  the  part  of  the  de- 
fendant, that  there  was  no  acceptance  of 
the  goods  by  him  so  as  to  take  the  case 
out  of  the  statute  of  frauds.  But  Abbott, 
C.  J.,  was  of  opinion  that  there  was  a  suf- 
ficient acceptance,  provided  that  the  de- 
fendant was  under  no  mistake  when  he 
bid  the  eighty-eight  guineas,  and  the  jury 
having  found  there  was  no  mistake,  a  ver- 
dict was  entered  for  the  plaintiff.  On 
motion  for  a  new  trial,  the  court  held  that 
the  evidence  of  acceptance  was  very  slight, 
and  that,  under  the  circumstances,  it 
should  have  been  submitted  to  tlie  jury, 
as  a  question  of  fact,  whether  there  was 
a  delivery  by  the  vendor,  and  an  actual 
acceptance  by  the  vendee,  intended  by 
both  parties  to  have  the  effect  of  trans- 
ferring the  right  of  possession  from  the  one 
to  the  other.  See  further  as  to  delivery 
to  satisfy  the  requirements  of  the  statute, 
Elmore  v.  Stone,  1  Taunt.  458  ;  Howe  v. 
Palmer,  3  B.  &  Aid.  321  ;  Tempest  v.  Fitz- 
gerald, lb.  680  ;  Hanson  v.  Armitage,  5 
B.  &  Aid.  557  ;  Carter  v.  Toussaint,  lb. 
855  ;  Bentall  ;;.  Burn,  3  B.  &  C.  423 ; 
Phillips  V.  Bistolli,  2  B.  &  C.   511. 


PART   I.]        WHAT   ARE   WITHIN   THE   STATUTE   OP   FRAUDS.  221 


BOOK    lY. 

PART  I. 

WHAT  ARE  WITHIN  THE   STATUTE. 

The  opinion  was  expressed  by  Littledale,  J.,  in  Smith  v.  Sur- 
man,^  that  the  legislature  intended  to  embrace  within  some  of  the 
sections  of  the  Statute  of  Frauds  the  subject-matter  of  all  con- 
tracts. And  in  that  case,  where  the  defendant  verbally  bought 
trees  that  were  then  growing,  but  were  to  be  felled  by  the  plain- 
tiff, the  court  held  that  the  sale  was  not  of  an  interest  in  lands 
within  the  meaning  of  the  fourth  section,  but  that  it  was  a  con- 
tract for  the  future  sale  of  the  timber,  as  goods,  wares,  or  mer- 
chandise within  the  seventeenth  section. 

But  there  are  clearly  species  of  intangible  property  (res  incor- 
porates) which  come  within  neither  the  fourth  nor  the  seventeenth 
section  of  the  statute.  Thus,  in  Duncroft  v.  Albrecht,^  although 
it  was  admitted  that  shares  in  a  railway  company  were  not  land, 
and  that  they  were,  in  effect,  personal  estate,  yet  it  was  held  that 
they  are  not  personal  estate'  of  the  quality  of  goods,  wares,  and 
merchandise  within  the  meaning  of  the  seventeenth  section  of  the 
statute.  The  ground  taken  for  the  distinction  was  that  that  sec- 
tion applied  only  to  goods,  wares,  and  merchandise  which  are 
capable  of  being  in  part  delivered.  But  this  does  not  appear  ten- 
able, as  railway  shares,  by  the  transfer  of  the  certificates,  would 
be  quite  as  capable  of  being  in  part  delivered,  as  goods  would 
be  by  the  transfer  of  warehouse  receipts.  The  better  reason 
would  seem  to  be  that  shares,  though  personalty,  differ  from 
"  goods,  wares,  and  merchandise  "  ^  in  being  intangible  ;  merely 
chases  in  action,  and  not  tangible  goods.     And,  in  fact,  this  is 

1  9  B.  &  C.  561,  571.  -which  means  all  personal   property,  the 

-  12  Sim.  189,  198.  title  to  which  is  evidenced  by  possession." 

8  "Goods  and   chattels,"  used  in  the  Hornblovver  v.   Proud,  2  B.  &  Aid.  327, 

statute   of  James,  as   being  in  the  order  335.      And   see   Ex  parte  Pease,   1  Rose, 

and  disposition  of  the  bankrupt   at   the  232  ;  Ex  parte  Dumas,   1  Atk.  232  ;  Ex 

time  of  his  bankruptcy,  is  a  stronger  terra,  parte  Burbridge,   1  Deac.  131;    Ex  parte 

Not  only  bills  of  exchange  but  debts  have  Ord,  lb.  166  ;  Ex  parte  Vallance,  2  Deac. 

been    held    to    be   within    that    statute.  354. 
"These  words  are  'goods  and  chattels,' 


222 


COMMENTARIES   ON   SALES. 


[book  IV. 


all  that  seems  to  be  meant,  that  is,  that  the  shares  themselves 
are  intanoible  ;  simply  choses  in  action,  aud,  therefore,  are  not 
tangible  goods,  wares,  and  merchandise,  and,  being  intangible, 
are  incapable  not  only  of  part  delivery,  but  of  delivery  at  all.^ 

The  English  authorities  are  not  considered  harmonious  with 
reference  to  whether  the  sale  of  growing  crops  comes  within 
section  4  or  section  17  of  the  statute.  We  examine  the  cases  in 
detail  which  bear  upon  the  subject. 

The  distinction  is  taken  in  a  very  old  case  in  Hobart  ^  between 
fructus  industrialis  and  fructus  naturalis ;  the  latter,  "  as  of 
grass  or  hay  which  run  meerly  with  the  land,"  going  to  tlie 
heir,  and  the  former  to  the  executor.     For  corn,  l)eing  '■'■fructus 


1  This  is  apparent  in  Humble  v. 
Mitchell,  11  A.  &  E.  205,  208,  where  the 
question  arose  as  to  shares  in  a  joint  stock 
banking  company.  Lord  Denman  there 
says:  "The  point  is  whether  the  shares 
in  this  company  are  goods,  wares,  or  mer- 
chandises, within  the  meaning  of  §  17  of 
the  statute  of  frauds.  It  appears  that  no 
case  has  been  found  directly  in  point ;  but 
it  is  contended  that  the  decisions  upon 
reputed  ownership  are  applicable,  and 
that  there  is  no  material  distinction  be- 
tween the  words  used  in  the  statute  of 
frauds,  and  in  the  bankrupt  act.  I  think 
that  both  the  language  and  the  intentioo 
of  the  two  acts  are  distinguishable,  and 
that  the  decisions  upon  the  latter  act 
cannot  be  reasonably  extended  to  the 
.statute  of  frauds."  In  Tempest  v.  Kilner, 
3  C.  B.  248,  it  was  held  that  a  contract 
for  the  sale  of  shares  in  a  projected  railway 
is  not  within  the  statute  of  frauds.  This 
was  followed  by  Bowlby  v.  Bell,  3  C.  B. 
284,  290.  Heseltine  v.  Siggers,  1  Ex.  856, 
shows  still  more  plainly  that  it  is  the 
intangibility  of  the  stock,  as  a  mere  chose 
ill  action,  represented  by  stock  certificates, 
as  distinguishing  it  from  tangible  goods, 
wares,  and  merchandise,  that  excludes  it 
from  the  operation  of  the  statute,  rather 
than  its  incapability  of  delivery.  There, 
in  an  action  for  not  delivering  foreign 
stock,  it  was  held  that  a  contract  relating 
thereto  was  not  within  the  17th  section  of 
the  statute;  and  that  a  contract  foi'  the  sale 
of  stock,  exchequer  biU.s,  and  securities  of 
that  description,  in  which  tJie  property 
passes  by  delivery,  differs  from  a. contract 
for  the  sale  of  a  specific  chattel,  inasmuch 
as  a  contract  for  the  sale  of  stock,  ex- 
chequer bills,  &c.,  would  be  satisfied  by  the 
delivery  of  auy  stock  or  bills  of  the  de- 
scri[)tion  bargained  for,  and  consequently 
the  contract  for  sale  cannot  mean  an  actual 
sale,  hut  only  a  contract  to  deliver.  In 
Watson  V.  Spratley,  10  Ex.  222,  it  was 
held  that  shares  in  a  joint-stock  mining 


company  are  not  an  interest  in  land  within 
the  4th  section,  nor  goods,  wares,  or  mer- 
chandise, within  the  17th  section.  And 
see  Hibble white  v.  McMorine,  6  M.  &  W. 
224 ;  Bligh  v.  Brent,  2  Y.  &  C.  268  ; 
Weekley  v.  Weekley,  cited  Ibid.  297  ; 
Northey  v.  Johnson  and  Comteis  v.  John- 
son, cited  in  Watson  v.  Spratley,  10  Ex. 
242  ;  Knight  v.  Barber,  16  M.  &  W.  70  ; 
Ex  parte  Vauxhall  Bridge  Co.,  1  Glyn  &  J. 
101  ;  Exparte  Lancaster  Canal  Co.  1  Mont. 
&  Bli.  94.  The  shares  of  proprietors,  as 
indi\dduals,  in  a  railway,  are  personalty, 
being  nothing  more  than  a  right  to  have  a 
share  of  the  net  produce  of  all  the  prop- 
erty of  the  company.  Per  Parke,  B.,  in 
Bradley  v.  Holdsworth,  3  M.  &  W.  122. 
But  lands  purchased  by  a  company,  and 
converted  into  a  dock,  according  to  an  act 
of  Parliament,  which  declares  that  the 
shares  of  the  proprietors  shall  be  con- 
sidered as  personal  property,  Hre  subject 
to  a  land  tax,  and  ratable  to  the  poor  in 
proportion  to  the  annual  profits.  Rex 
V.  Hull  Dock  Co.,  1  T.  R.  219.  But  that 
is  a  rate  on  the  property  in  the  hands  of 
the  company  ;  not  on  the  share  of  any 
individual  proprietor.  Per  Lord  Abinger, 
in  Bradley  v.  Holdsworth,  3  M.  &  W.  at 
p.    423.      And   see    Rex   v.    Richardson, 

3  Burr.  1341  ;  Rowls  v.  Gells,  Cowp.  451  ; 
Rex  V.  The  Mayor,  &c.  of  London,  4  T.  R. 
21  ;     Rex    v.    Tlie    Commis.sioners,    &c., 

4  T.  R.  730.  And  see  an  elaborate  judg- 
ment in  Rex  v.  Rodd,  Caldec.  149,  as  to 
the  non-ratability  of  tolls,  profits,  and 
other  intangil)le  matter.  In  Rex  v.  Shal- 
fleet,  4  Burr.  2011,  it  was  held  that 
salaries  do  not  come  within  the  statute  of 
43  Eliz.  3,  2,  as  being  "personal  estate 
within  the  parish ;  "  that  they  were  not 
such  a  species  of  property  as  could  be 
rated  to  the  relief  of  tlie  poor.  All  such 
intangible  property,  analogously,  is  ex- 
cluded from  being  affected  by  the  statute 
of  frauds. 

2  Grantham  r.  Hawley,  Hob.  132. 


PART  I.]    WHAT  ARE  WITHIN  THE  STATUTE  OF  FRAUDS.       223 

industrialism  so  that  he  that  sows  it  may  seem  to  have  a  kind 
of  property  ipso  facto  in  it  divided  from  the  land  ;  and,  there- 
fore, the  executors  shall  have  it,  and  not  the  heirs."  And  in 
this  case  it  was  held  that  growing  corn  sold  by  the  lessee  could 
be  sold  by  him,  and  would  pass  to  the  vendee  and  not  to  the 
reversioner ;  "  for  though  the  lessor  had  not  the  corn  actually 
in  him,  nor  certain,  yet  he  had  it  potentially  ;  for  the  land  is 
the  mother  and  root  of  all  fruits.  Therefore,  he  that  hath  it 
may  grant  all  fruits  that  may  arise  upon  it  after,  and  the  prop- 
erty shall  pass  as  soon  as  the  fruits  are  extant,  as  21  H.  6."  ^ 

The  same  distinction  was  taken  in  Latham  v.  Atwood.^  There, 
a  woman,  tenant  for  life,  died  in  August,  leaving  hops  then  grow- 
ing and  not  severed,  but  growing  out  of  ancient  roots.  It  was 
claimed  that  they  went  to  the  husband  and  not  to  him  in  remain- 
der, because  she  died  so  small  a  while  before  the  gathering  of 
them  ;  "  and  they  are  such  things  as  grow  by  manurance  and  in- 
dustry of  the  owner,  by  the  making  of  hills  and  setting  poles." 
And  the  court  so  held,  —  that  they  are  like  emblements,  which 
shall  go  to  the  husband  or  executor  of  the  tenant  for  life,  and 
not  to  him  in  remainder,  "  and  are  not  to  be  compared  to  apples 
or  nuts,  which  grow  of  themselves." 

But  in  a  case  in  Lord  Raymond,^  Treby,  Chief  Justice,  reported 
to  the  other  justices  that  it  was  a  question  before  him  at  a  trial 
at  nisi  prius  at  Guildhall,  whether  the  sale  of  timber  growing 

^  But  in  Spencer's  Case,  Winch,  51  timber  and  sold  it  to  the  plaintiff.  The 
(a.  d.  1792),  it  was  adjudged  that  where  a  assignees  of  the  mortgage  took  possession 
man  seized  in  fee,  sowed  land,  which  he  of  the  timber,  and,  after  they  had  been 
devised  in  fee,  and  died  before  the  sever-  paid  the  instalments  due  and  interest,  they 
ance,  the  devisee  should  have  the  corn  sold  the  ^timber  and  apjiropriated  the  pro- 
and  not  the  executor  of  the  devisor.  But  ceeds  to  themselves.  The  Supreme  Court 
in  a  later  case.  Cox  v.  Godsalve,  Holt's  of  the  United  States  held,  affirming  the 
MS.,  cited  6  East,  604,  n.,  it  was  decided  judgment  of  the  Circuit  Court  for  New 
as  in  Grantham  v.  Hawley,  Hob.  132,  Hampshire,  that  growing  timber  is  a  part 
that,  where  one  devised  a  farm  in  his  own  of  the  land  ;  that,  in  this  case,  the  sale  by 
occupation  to  his  mother  for  life,  re-  the  mortgagors  of  the  timber  after  it  was 
mainder  to  G.  in  tail,  and  also  bequeathed  cut,  did  not  divest  the  lien  of  the  assignees 
to  his  mother  "all  his  goods  and  chattels,  of  the  mortgage;  the  purchaser  taking 
stock  of  his  farm,  bonds,  &c.  and  all  other  the  timber  subject  to  their  paramount 
his  movables  whatsoever,"  and  made  her  rights.  The  assignees  could  follow  it  and 
executrix  ;  tlie  growing  corn,  which  was  not  take  possession  of  it,  and  hold  it  until  the 
reai)ed  till  after  the  death  of  the  testator  designated  amounts  due  at  the  time  were 
and  of  his  mother,  who  died  soon  after  paid.  When  these  were  paid,  their  rights 
him,  passed  to  her  representative  and  not  over  it  ceased,  and  the  vendee  of  the 
to  the  devisee  of  the  land.  The  corn  was  mortgagors  became  invested  with  a  corn- 
held  to  pass  to  his  mother  by  the  bequest  plete  title.  The  subsequent  detention  of 
of  his  goods.  the  timber  was  wrongful,  and  the  sale  of 

Land  was    mortgaged,    the    mortgage  it  a  conversion,  for  which  they  were  liable 

containing  a  stipulation   that   the   mort-  to    the    purchaser.      Hutchins   v.    King, 

gagors  could  cut  the  timber  on  it  as  fast  1  Wall.  53. 

as  they  paid  the  instalments  as  they  fell  2  d-Q.  Car.  515. 

due,  and  no   faster.      While  instalments  ^  Anon,  1  Ld.  Kay.  182. 
were  due  and  unpaid,  the  mortgagors  cut 


224  COMMENTARIES   ON   SALES.  [BOOK   IV. 

upon  the  land  ought  to  be  in  writing  within  the  fourth  section 
of  the  Statute  of  Frauds,  or  might  be  by  parol.  And  he  was  of 
opinion,  and  gave  the  rule  accordingly,  that  it  might  be  by  parol, 
"■  because  it  is  but  a  bare  chattel."  And  to  this  opinion  Powell, 
Justice,  agreed. 

In  Poulter  v.  Killingbeck,i  ^  agreed  with  B.  to  let  him  land 
rent-free  on  condition  that  A.  should  have  a  moiety  of  the  crops. 
While  the  crop  was  in  the  ground  it  was  appraised  for  both 
parties.  A.  declared  in  indebitatus  assumpsit  for  a  moiety  of  the 
value  of  the  crop  sold  to  B.,  without  stating  the  special  agree- 
ment. It  was  held  that  indebitatus  assumpsit  would  lie,  and,  sem- 
ble,  that  such  an  agreement  need  not  be  in  writing,  under  the 
fourth  section  of  the  statute.  Per  Buller,  J.,  "This  agreement 
does  not  relate  to  any  interest  in  the  lands,  which  remains 
altogether  unaltered  by  the  arrangement  concerning  the  crops." 

By  the  4th  section  of  23  Geo.  3,  c.  58,  there  is  an  exemption 
from  stamp  duty,  under  the  act,  of  "  any  memorandum,  letter, 
or  agreement  made  for  or  relating  to  the  sale  of  any  goods, 
wares,  or  merchandises." 

A  question  arose  under  this  act  in  Waddington  v.  Bristow,^ 
where  there  was  an  agreement  for  the  sale  of  all  the  hops  then 
growing  on  twenty -two  acres  of  land,  which  were  subsequently, 
"  after  they  had  been  pulled  and  gathered,"  to  be  delivered  to 
the  purchaser  by  the  seller,  in  pockets ;  whether  such  agreement 
came  within  the  above  exception ;  and  it  was  held  that  it  did 
not.  The  soundness  of  the  decision  has  been  greatly  questioned,^ 
and  we  think  very  correctly  so.  The  reasoning  by  the  judges  in 
the  case  is  very  inconclusive.  Lord  Alvanley's  decision  was 
based  on  the  ground  that  the  defendant  undertook  to  sell  the 
whole  produce  of  twenty-two  acres  in  his  possession,  and  if  he 
had  sold  one  bushel  to  any  other  person  he  would  have  been 
liable  to  an  action.  "He  agreed  to  sell  the  whole  produce  of 
the  land  in  a  certain  state ;  the  first  term  of  the  agreement  is, 
that  he  will  sell  the  whole  produce  of  the  land,  and  the  second, 
that  it  sliall  be  in  a  certain  state  at  the  time  of  delivery.  It  is 
therefore  an  agreement  for  the  sale  of  goods,  wares,  and  mer- 
chandises, and  something  more."  What  more  it  was,  it  is  diffi- 
cult to  see.  It  was  simply  a  sale  of  a  specific  growing  crop,  to 
be  gathered  and  delivered  by  the  seller.  And  Chambre,  J.,  "  The 
declaration  puts  the  matter  beyond  all  doubt,  for  it  states  the 
contract  to  be  for  the  specific  produce  of  twenty-two  acres  of  land 

M  B.  &  p.  397.  Rodwell  v.  PhUUps,  9  M.  &  W.  503,  per 

2  2  B.  &  P.  452.  Parke,  B. 

'  See  Blackburn  on  Sales  (2d  ed.),  7; 


PART   I.]         WHAT   ARE   WITHIN   THE   STATUTE   OF   FRAUDS.  225 

alleged  to  be  in  the  possession  of  the  vendor.  Now  the  statute 
only  exempts  contracts  for  the  sale  of  goods,  wares,  and  mer- 
chandises. But  this  contract  gives  the  vendee  an  interest  [In 
what  ?  in  the  whole  land  ?  No !]  m  the  whole  produce  of  that 
part  of  the  vendor's  farm  which  consists  of  hop  grounds.  If  the 
vendor  had  grubbed  up  the  hops,  or  had  refused  to  gather  or  dry 
them,  it  would  have  been  a  breach  of  the  contract.  [Here  the 
matter  is  put  analogously  to  the  case  of  the  sale  of  a  specific 
unfinished  chattel,  to  be  finished  and  delivered  by  the  vendor, 
which  none  the  less  is  within  the  statute.]  Though  I  admit  that 
a  contract  for  the  sale  of  so  many  hops  as  twenty-two  acres 
might  produce,  to  be  delivered  at  a  distant  day,  might  fall  within 
the  exemption  of  the  act,  notwithstanding  the  hops  were  not  in 
the  state  of  goods,  wares,  and  merchandises,  at  the  time  of  the 
contract  made,  yet  I  cannot  think  the  present  agreement  within 
that  exemption,  since  it  gives  an  interest  to  the  vendee  [in  what?] 
in  the  produce  of  the  vendor's  land." 

While  we  see  no  force  in  the  distinction  here  made,  the  sale 
being,  in  fact,  simply  the  sale  of  the  hops  which  the  specific 
"  twenty-two  acres  might  produce,"  the  opinions  of  the  other 
judges.  Heath  and  Rooke,  JJ.,  were  not  concurred  in,  that  the 
agreement  must  be  taken  with  reference  to  the  time  at  which 
the  contract  was  made,  as  to  the  then  state  of  the  subject  of  the 
sale.  It  is  noteworthy  that  none  of  the  judges  intimated  that 
such  an  agreement,  whatever  more  they  thought  it  might  have 
been  than  an  agreement  for  the  sale  of  goods,  wares,  or  mer- 
chandise, gave  any  interest  whatever  in  the  land.  Although  it 
has  been  generally  considered  that  this  case  is,  in  effect,  a  deci- 
sion applicable  to  the  seventeenth  section  of  the  Statute  of  Frauds, 
the  ratio  decidendi  of  the  case,  different  from  that  which  it  has 
been  assumed  to  be,  really  is,  that,  as  the  sale  of  the  hops  was 
held  to  be  a  sale  of  goods,  wares,  or  merchandise,  and  the  agree- 
ment was  not  exempt  from  the  effect  of  the  fourth  section  of 
the  Stamp  Act,  because  of  the  "  something  else  "  that  was  in  it ; 
as  regards  the  seventeenth  section  of  the  Statute  of  Frauds,  par- 
ticularly as  amended  by  Lord  Tenterden's  Act,  it  was  a  sale 
within  that  section,  as  of  specific  goods,  wares,  or  merchandise, 
thereafter  to  be  delivered  by  the  seller.  So,  as  regards  the  Statute 
of  Frauds,  the  effect  of  the  case  is  just  the  opposite  of  that  which 
it  is  generally  assumed  to  be.^ 

In  Crosby  v.  Wadsworth,^  the  plaintiff  agreed  by  parol  with  the 
defendant  for  the  purchase  of  a  standing  crop  of  mowing  grass, 

1  See  post,  note  to  Rodwell  v.  Phillips,  2  g  East,  602. 

9  M.  &  W.  501. 

VOL.    II.  16 


226  COMMENTARIES   ON   SALES.  [bOOK   IV, 

then  growing  in  the  defendant's  close ;  the  grass  to  be  mowed  and 
made  into  hay  by  the  plaintiff.  It  was  held  that  this  was  within 
the  fourth  and  not  within  the  seventeenth  section  of  the  statute, 
as  under  the  contract  this  gave  him  such  an  interest  in  the  land 
as  would  enable  him  to  maintain  trespass  against  a  wrong-doer 
interfering  with  the  grass  before  it  was  cut.  Lord  EUenborough 
delivered  the  judgment  in  this  case,  in  which  he  used  some  lan- 
guage, with  reference  to  the  assumed  holding  in  Waddington  v. 
Bristow,^  and  to  other  matters,  which  is  scarcely  sustainable.  In 
fact,  in  Parker  v.  Staniland,^  Lord  EUenborough  himself  ex- 
pressly departed  from  much  that  he  had  said  in  Crosby  v.  Wads- 
worth.3  In  Parker  v.  Staniland,  there  was  a  contract  by  the 
owner  of  a  close  cropped  with  potatoes,  made  on  the  21st  of  No- 
vember, to  sell  to  the  defendant  the  potatoes  at  4s.  6d.  a  sack, 
the  defendant  to  get  them  out  of  the  ground  immediately ;  and 
it  was  held  that  this  was  not  a  contract  for  any  interest  in  land 
within  the  fourth  section  of  the  Statute  of  Frauds,  but  was  the 
same  as  if  the  potatoes,  which  had  done  growing  and  were  to  be 
taken  up  immediately,  had  been  sold  in  a  warehouse,  from  whence 
they  were  to  be  removed  by  the  defendant.  Lord  EUenborough 
made  the  distinction  between  this  case  and  Crosby  v.  Wadsworth, 
that  in  the  latter,  under  the  contract,  the  purchaser  was,  in  effect, 
a  lessee,  having  a  possessory  right  to  the  land  which  would  enable 
him  to  maintain  trespass  quare  clausum  or  ejectment ;  whereas  in 
the  latter  the  purchaser  had  only  an  easement,  —  a  right  to  come 
upon  the  land  for  the  purpose  of  raking  up  and  carrying  away 
the  potatoes,  which  gave  him  no  interest  in  the  soil.  Lord  Ellen- 
borough  also  intimated  that  he  was  not  disposed  to  extend  the 
case  of  Crosby  v.  Wadsworth. 

Emmerson  v.  Heelis*  was  decided  on  the  assumption  that  Wad- 
dington V.  Bristow^  was  a  decision  under  the  Statute  of  Frauds, 
which,  as  we  have  seen,  it  was  not ;  but  that,  in  fact,  it  did  in 
effect  decide  that  the  hops  there  sold  came  within  the  seventeenth 
section  of  the  statute,  as  a  sale  of  goods,  wares,  and  merchandise. 
Assuming,  however,  to  follow  Waddington  v.  Bristow,  it  was  held 
by  the  court  in  Emmerson  v.  Heelis  (Lord  Mansfield  delivering 
the  judgment)  that  a  sale  of  growing  turnips,  no  time  being  stip- 
ulated for  their  removal,  and  the  degree  of  their  maturity  being 
not  positively  found,  is  a  sale  of  an  interest  in  land  within  section 
four  of  the  statute.  The  question  was  raised  whether  still  the 
sale  was  not  within  section  seventeen,  as  being  a  sale  of  goods, 

1  2  B.  &  p.  452.  *  2  Taunt.  38. 

2  11  East,  362,  363.  5  2  B.  &  P.  452. 
8  6  East,  602. 


PART    I.]         WHAT    ARE    WITHIN    THE    STATUTE    OF    FRAUDS.  227 

wares,  or  merchandise ;  but  tliis  was  not  decided,  as  it  was  held 
that  the  turnips  having  been  in  different  parcels,  neither  of  which 
amounted  to  XIO,  the  sale  would  not,  on  that  ground,  come 
within  the  seventeenth  section.^  The  case  itself,decided  as  it  was 
on  a  misapprehension  of  the  holding  in  Waddington  v.  Bristow, 
is,  we  think,  of  very  little  authority.  Several  of  these  old  cases, 
like  others  cited  by  us,  supra,^  were  evidently  decided  under  the 
view  of  the  operation  of  the  statute,  then  largely  prevalent,  which 
led  to  the  passage  of  Lord  Tenterden's  Act. 

Lord  Ellenborough  still  further  departed  from  much  of  his 
reasoning  in  Crosby  v.  Wadsworth,^  in  his  judgment  in  Warwick 
V.  Bruce.*  In  this  case  the  defendants  agreed  by  parol  to  sell  to 
plaintiff  all  potatoes  then  growing  on  three  acres,  at  so  much  per 
acre,  to  be  dug  up  and  carried  away  by  plaintiff.  The  plaintiff 
paid  <£40  to  the  defendant  under  the  agreement,  and  dug  a  part 
and  carried  away  a  part  of  those  dug,  but  was  prevented  by  the 
defendant  from  digging  and  carrying  away  the  residue.  It  was 
held  that  this  agreement  was  not  within  the  fourth  section  of  the 
statute.  Lord  Ellenborough  said :  "  If  this  had  been  a  contract 
conferring  an  exclusive  right  to  the  land  for  a  time  for  the  pur- 
pose of  making  a  profit  of  the  growing  surface,  it  would  be  a 
contract  for  the  sale  of  an  interest  in  or  concerning  lands,  and 
would  then  fall  unquestionably  within  the  range  of  Crosby  v. 
Wadsworth.  But  here  is  a  contract  for  the  sale  of  potatoes  at  so 
much  per  acre ;  the  potatoes  are  the  subject-matter  of  sale,  and 
whether  at  the  time  of  sale  they  were  covered  with  earth  in  the 
field,  or  in  a  box,  still  it  was  a  sale  of  a  mere  chattel.  It  falls 
therefore  within  the  case  of  Parker  v.  Staniland ;  ^  and  that  dis- 
poses of  the  point  in  the  Statute  of  Frauds."  ^ 

Indebitatus  assumpsit  was  held  to  lie,  in  May  field  v.  Wadsley,'^ 
for  a  crop  of  growing  wheat,  to  be  reaped  by  the  purchaser.^     But 

^  Even    assuming   that   Emmerson   v.  '^  Page  217,  n. 

Heelis,  2  Taunt.  38,  was  correctl)'  decided  ^  6  East,  602. 

(which  we  think  it  was  not),  yet  the  in-  *  2  M.  &  S.  205. 

clination  of  Lord  Mansfield  seemed  to  he  ^11  East,  362. 

to  hold,  that  had  the  turnips  been  bought  ^  Groves  v.  Buck,  3  M.  &  S.  178,  al- 
in  one  lot,  for  more  than  £10,  they  still  though  usually  cited  with  this  class  of 
would  have  come  within  the  17th  section,  cases,  is  not  directly  on  the  question  of 
Practically,  however,  this  is  not  imj)or-  growing  crops,  but  rather  on  that  as  to 
tant,  for  the  same  note  or  memorandum  whether  the  sale  of  goods  incapable  of  de- 
in  writing  which  would  take  the  case  out  livery  at  the  time  of  the  contract  comes 
of  the  4th  would  also  take  it  out  of  the  within  the  17th  section,  — a  question  dis- 
17th  section.  The  importance  in  these  posed  of,  at  all  events,  by  Lord  Tenter- 
cases  is  where  the  subject  is  within  the  den's  Act.  See  Owen  v.  Legh,  3  B.  & 
17th  and  not  within  the  4th  section  ;  for  Aid.  470,  on  the  sale  of  standing  com  and 
then  part  payment,  etc.,  would  take  the  growing  crops  upon  a  distress  for  rent, 
case  out  of  the  statute,  which  would  not  under  11  Geo.  2,  c.  19,  §  8. 
apply  to  cases  coming  within  the  4th  ^  3  B.  &  C.  357. 
section.  8  Iq  this  case,  Holroyd,  J.,   followed 


228 


COMMENTARIES   ON   SALES. 


[book  IV. 


in  Teal  v.  Autj,^  a  contract  for  the  purchase  of  growing  poles, 
which  the  defendants  were  to  cut  down  and  carry  away,  was  held 
to  be  within  the  fourth  section  of  the  statute,  as  an  agreement  for 
the  purchaser  of  an  interest  in  lands.^  So,  in  Scovell  v.  Boxall,^ 
which  was  an  action  of  trespass  for  cutting  down  and  carrying 
away  underwood  ;  the  question  was  whether  the  plaintiff,  who  had 
purchased  by  parol  the  underwood,  then  standing,  to  be  cut  by 
him,  had  such  a  possession  as  would  enable  him  to  maintain  tres- 
pass against  the  defendants  for  cutting  and  carrying  it  away,  and 
it  was  held  that  he  had  not,  —  that  the  agreement  related  to  an 
interest  in  land,  and  was  void  under  the  fourth  section  of  the 
statute.* 


Anon,  in  1  Lil.  Ray.  182,  quoting  from 
Treby,  C.  J.,  as  saying,  "that  a  sale  of 
timber  growing  upon  the  land  need  not 
be  in  writing,  because  it  was  a  bare  chat- 
tel," and  to  that  opinion  Powell,  J., 
agreed,  — adding  :  "In  some  cases,  there- 
fore, crops  growing  upon  the  land  may  be 
considered  as  goods  and  chattels ;  and 
crops  agreed  to  be  taken  by  an  incoming 
of  an  outgoing  tenant  may  be  recovered 
under  a  count  for  goods  bargained  and 
sold."  Littledale  was  of  the  opinion, 
however,  that  the  action  would  not  lie  ; 
but  it  was  on  the  ground  that,  coupled 
with  the  sale  of  the  wheat,  there  was  also 
a  sale  of  the  land.  He  says."  "If  the 
giving  up  of  the  land  was  any  part  of  the 
consideration  for  the  defendant's  agi-eeing 
to  take  the  wheat  which  was  then  sown 
in  the  land,  the  wheat  must  be  considered 
as  part  of  the  land  itself.  It  is  true  that 
in  some  cases  there  may  be  a  contract  for 
the  growing  crops  independently  of  the 
land  itself ;  but  where  the  land  is  agreed 
to  be  sold,  and  the  vendee  takes  from  the 
vendor  the  growing  crops,  the  latter  are 
considered  part  of  the  land.  It  by  no 
means  follows,  therefore,  that  because 
the  crops  formed  the  subject  of  a  <listinct 
valuation,  they  were  the  subject  of  a  dis- 
tinct contract  of  sale.  Most  of  the  cases 
where  this  question  has  arisen  were  upon 
contracts  for  growing  wheat,  potatoes,  and 
things  of  that  nature,  distinct  from  any 
assignment  or  letting  of  the  land,  and 
they  have  been  held  not  to  be  within  the 
statute.  [The  4th  section  is  here  meant. 
AuTH.]  Here  the  agreement  did  not  re- 
late to  the  mere  sale  of  the  produce  of  the 
land.  ...  A  parol  agreement  for  the  sale 
of  crops  may  be  good  also  between  the 
outgoing  an<i  the  incoming  tenant ;  but 
then  there  would  be  no  sale  of  any  in- 
terest in  the  land,  for  that  would  come 
from  the  landlord.  Since,  then,  it  seems 
that  the  plaintiff  had  some  interest  in  the 
land,  it  appears  to  me  that  the  crops  were 


part  of  the  land;  but  I  express  this  opin- 
ion with  diffidence,  after  the  opinion  de- 
livered by  my  lord  and  my  brothei-s." 

1  2  Br.  &  B.  99. 

2  In  Grover  t>.  Coles,  1  Bing.  6,  it  was 
held  that  there  was  no  variance  between  a 
declaration  and  a  replevin  bond,  in  the 
former  of  which  the  language  used  was 
"goods  and  chattels  ;"  and  in  the  latter, 
"growing  crops  of  corn"  was  included 
with  "goods  and  chattels."  The  court 
held  that  the  crops  of  corn  were  chattels 
"on  the  farm  and  lands  of  the  plaintiff," 
and  clearly  so  under  the  11  Geo.  2,  c.  19, 
§  8,  which  made  growing  com  a  chattel. 

8  1  V.  &  J.  396. 

*  Hullock,  B.,in  this  case,  said:  "It 
was  incumbent  on  the  plaintiff  to  estab- 
lish his  right  to  an  interest  in  the  free- 
hold, for  trees  annexed  to  the  freehold  are 
parcel  of  the  inheritance  and  pass  with  it. 
Com.  Dig.  Bicns,  H.  Corn  and  other  ar- 
ticles which  are  raised  by  the  industry  of 
man  are  emblements  which  go  to  the  ex- 
ecutor, and  may  be  taken  in  execution  ; 
but  things  which  give  no  annual  profit, 
or  which  proceed  without  the  labor  of 
man,  are  not  emblements  :  they  go  to  the 
heir,  and  cannot  be  seized  under  a  fi.  fa. 
The  case  of  Evans  v.  Roberts,  5  B.  &  C. 
829,  and  other  cases  upon  this  subject, 
will  be  found  to  range  themselves  under 
this  principle,  and  to  be  reconcilable  with 
this  distinction.  My  brothers,  Bayley  and 
Holroyd,  in  the  case  of  Maytield  v.  Wads- 
ley,  3  B.  &  C.  357,  were  of  opinion  that 
an  off-going  crop  might  be  considered  as 
goods  and  chattels  ;  and  the  judgment  of 
Mr.  Justice  Littledale  in  that  of  Evans  r. 
Roberts  proceeds  expressly  on  the  ground 
of  distinction  between  such  things  as  go 
to  the  heir  or  to  the  executor.  There  is 
a  manifest  distinction  between  crops  and 
the  subject-matter  of  this  contract.  It  is 
true  that  the  dictum,  in  Lord  Raymond  is 
opposed  to  this  opinion  ;  but  it  is  to  be 
remembered   that   if  that  were   law,  the 


PART   I.]        WHAT   ARE   WITHIN   THE   STATUTE   OF   FRAUDS.  229 

The  case  of  Evans  v.  Roberts  ^  is  quite  a  valuable  one  on  the 
question.  This  was  an  action  of  indebitatus  assumpsit  for  a  crop 
of  potatoes  bargained  and  sold.  They  were  purchased  in  Sep- 
tember, under  a  verbal  agreement,  for  a  price  less  than  .£10. 
The  potatoes  were  then  in  the  ground,  and  were  to  be  turned  up 
by  the  seller.  The  defence  was  that  the  contract  was  for  an 
interest  in  or  concerning  lands,  and  was  void  within  the  fourth 
section  of  the  statute.  The  court  held  otherwise.  Independent 
of  the  fact  that  the  seller  was  to  dig  the  potatoes,  therein  differing 
from  Crosby  v.  Wadsworth,^  where,  by  the  terms  of  the  contract, 
the  buyer  did  acquire  an  interest  in  the  land,  for  he  was  to  mow 
the  grass,  and  must,  therefore,  have  had  the  possession  of  the 
land  for  that  purpose  ;  the  case  was  distinguished  from  Crosby  v. 
Wadsworth,  further,  on  the  ground  that,  in  that  case,  the  subject 
of  the  sale  was  growing  grass,  the  natural  and  permanent  produce 
of  the  land,  renewed  from  time  to  time  without  cultivation ;  and 
that  growing  grass  does  not  come  within  the  description  of  goods 
and  chattels;  cannot  be  seized  as  such  under  a  ^. /a.;  and  goes  to 
the  heir  and  not  to  the  executor.  But  growing  potatoes  come 
within  the  description  of  emblements ;  are  deemed  chattels  by 
reason  of  their  being  raised  by  labor  and  manurance ;  go  to  the 
executor  of  tenant  in  fee  simple,  although  they  are  fixed  to  the 
freehold,  and  may  be  taken  in  execution  under  a  fi.  fa.^  by  which 
the  sheriff  is  commanded  to  levy  the  debt  of  the  goods  and  chat- 
tels of  the  defendant.  Therefore,  the  potatoes,  being  chattels, 
come  within  the  seventeenth  and  not  the  fourth  section  of  the 
statute.^ 

Smith  V.  Surman*  is  another  important  case  on  the  subject. 
There  the  owner  of  trees  verbally  agreed  with  the  defendant, 
while  trees  were  standing,  to  sell  the  defendant  a  quantity  of 
timber ;  the  trees  to  be  felled  by  the  seller,  and  the  timber  to  be 

several  modem  cases  which  have  been  de-  a  sale  of  any  growing  produce  of  the  earth, 
cided  could  never  have  arisen.  I  must  reared  by  labor  and  expense,  in  actual  ex- 
confess  that  I  never  before  heard  that  istence  at  the  time  of  the  contract,  whether 
dictum  cited  as  an  authority  ;  and  the  it  be  in  a  state  of  maturity  or  not,  is  not 
only  claim  which  it  has,  in  my  opinion,  to  be  considered  a  sale  of  an  interest  in  or 
to  that  distinction,  is  the  allusion  to  it  by  concerning  land  within  the  meaning  of  the 
Mr.  Justice  Holroyd.  The  Court  of  Com-  4th  section  of  the  statute,  but  a  contract 
mon  Pleas,  however,  have  in  a  modern  for  the  sale  of  goods,  wares,  and  merchan- 
case  (Teal  v.  Auty,  2  Br.  &  B.  99)  de-  disc  within  the  17th  section  of  that  stat- 
cided  that  the  sale  of  growing  poles  does  ute  ;  and  that  the  4th  section  had  respect 
confer  an  interest  in  land.  Upon  these  to  the  sale  of  such  an  interest  in  the  land 
grounds  I  am  of  opinion  that  this  was  a  as  would  entitle  the  vendee  either  to  the 
sale  of  an  interest  in  land  ;  and  that,  the  reversion  or  the  present  [jossession  of  the 
action  being  founded  on  property,  the  land,  and  not  such  an  interest  as  consti- 
plaintifT  has  failed  to  show  a  right  to  tutes  no  part  of  the  realty  under  a  con- 
maintain  it."  tract  which  only  gives  to  the  vendee  an 

1  5  P..  &  0.  829.  interest  in  that  growing  produce  of  the 

2  6  East,  202.  land  which  constitutes  its  annual  profit. 
«  Littledale,  J.,  in  this  case,  held,  that  *  9  B.  &  C.  561. 


230 


COMMENTARIES   ON   SALES. 


[book   IV. 


carried  away  by  the  defendant.  The  court  held  that  this  was  a 
contract  under  the  seventeenth  section  of  the  statute  for  the  pur- 
chase of  goods,  wares,  and  merchandise.  Here,  Littledale,  J., 
expressly  held,  in  accordance  with  the  view  we  have  expressed  in 
our  note,i  that  where  the  contracting  parties  contemplate  a  sale, 
although  the  subject-matter  of  the  contract  does  not  exist  in 
o-oods,  but  is  to  be  converted  into  that  state  by  the  seller's  bestow- 
ing work  and  labor  on  his  own  raw  materials  :  that  is  a  case 
within  the  seventeenth  section  of  the  statute.  It  is  sufficient  if, 
at  the  time  of  the  completion  of  the  contract,  the  subject-matter 
be  goods,  wares,  and  merchandise.^ 

The  7  Wm.  3,  c.  12,  Ir.^  is  the  Statute  of  Frauds  applicable 
to  Ireland,  the  second  and  thirteenth  sections  of  which  are  in 
effect  the  same  as  the  fourth  and  seventeenth  sections  of  the 
English  act,  unaffected  by  Lord  Tenterden's  Act.  In  Dunne  v. 
English,*  decided  under  this  act,  the  action  was  in  trover  for 
five  acres  of  turnips,  containing  5000  cartloads.      In  October, 


1  See  i7i/ra,  p.  260,  n.  1. 

2  The  same  learned  judge  further  added : 
"  I  think  that  the  contract  in  this  case  was 
not  a  contract  for  the  sale  of  lands,  tene- 
ments, or  hereditaments,  or  any  interest  in 
or  concerning  the  same  within  the  meaning 
of  the  fourth  section.  Those  words  in  that 
section  relate  to  contracts  (for  the  sale  of 
the  fee  simple,  or  of  some  less  interest 
than  the  fee)  which  give  the  vendee  a 
right  to  the  use  of  the  land  for  a  specific 
period.  If  in  this  case  the  contract  had 
been  for  the  sale  of  the  trees,  with  a  spe- 
cific liberty  to  the  vendee  to  enter  the 
land  to  cut  them,  I  think  it  would  not 
have  given  him  an  interest  in  the  laud 
within  the  meaning  of  the  statute.  The 
object  of  a  party  who  sells  timber  is,  not 
to  give  the  vendee  any  interest  in  his 
land,  but  to  pass  to  him  an  interest  in 
the  trees,  when  they  become  goods  and 
chattels.  Here  the  vendor  was  to  cut  the 
trees  himself.  His  intention  clearly  was, 
not  to  give  the  vendee  any  property  in 
the  trees  until  they  were  cut,  and  ceased 
to  be  part  of  the  freehold.  I  think,  there- 
fore, that  there  was  not  in  this  case  any 
contract  or  sale  of  any  interest  in  lands." 
In  many  of  these  cases  the  influence  of 
the  idea  that  existed  prior  to  the  passage 
of  Lord  Tenterden's  Act,  that  if  at  the 
time  the  contract  was  made  the  subject  of 
it  was  not  then  in  a  condition  to  be  de- 
livered under  the  contract,  it  was  not 
within  the  17th  section,  evidently  had  its 
effect  in  some  of  the  cases  where  the  con- 
tract was  in  relation  to  timber,  or  growing 
crops,  not  then  in  a  state  for  delivery. 
Cases  such  as  Towers  v.  Osborne,  1  Str. 
506  ;  Clayton  v.  Andrews,  i  Burr.  2101, 


and  Groves  v.  Buck,  3  M.  &  S.  178,  were 
decided  on  the  principle  that  contracts  for 
articles  not  then  in  a  state  for  delivery 
under  the  contract,  but  to  be  made  out 
of  materials  then  in  existence,  were  not 
within  the  17th  section.  But,  even  before 
the  passage  of  Lord  Tenterden's  Act,  the 
better  opinion  was  against  the  doctrine  of 
these  cases,  and  their  assumed  fallacy  evi- 
dently led  to  the  interference  of  the  legis- 
lature in  enacting  that  act.  See  Rondeau 
V.  VVyatt,  2  H.  Blk.  63  ;  Garbutt  v.  Wat- 
son, 5  B.  &  Aid.  613  ;  Cooper  v.  Elston, 
7  T.  R.  14.  Watts  v.  Friend,  10  B.  &  C. 
446,  goes  still  further  than  these  latter 
cases.  In  it  the  action  was  on  an  agree- 
ment between  the  plaintiff  and  defendant 
that  the  former  should  furnish  the  latter 
with  a  certain  quantity  of  turnip-seed, 
which  the  defendant  should  sow  on  his 
own  land,  and  sell  and  deliver  the  whole 
of  the  seed  produced  therefrom  to  the 
plaintiff,  at  a  price  assumed  to  have  been 
in  all  greater  than  £10.  Tlie  plaintiff 
supplied  the  seed ;  defendant  sowed  it, 
and  harvested  the  crop,  but  refused  to  de- 
liver it  to  the  plaintiff.  The  court,  fol- 
lowing Smith  V.  Surman,  9  B.  &  C.  561, 
held  that  the  agreement  was  within  the 
17th  section;  Lord  Tenterden,  in  deliver- 
ing the  judgment,  saying  :  "According  to 
good  common-sense  this  must  be  consid- 
ered as  substantially  a  contract  for  goods 
and  chattels,  for  the  thing  agreed  to  Ite 
delivered  would  at  the  time  of  delivery  be 
a  personal  chattel." 

3  See  vol.  iii.,  Irish  Statutes,  a.  d. 
1695-1698,  p.  279  etseq. 

*  Haj'es,  540. 


PART   I.]        WHAT    ARE   WITHIN   THE   STATUTE   OF    FRAUDS. 


231 


1830,  the  defendant  sold  to  the  plaintiff  a  crop  of  turnips  which 
he  had  sown  a  short  time  previously,  for  a  sum  less  than  £10. 
In  February,  1831,  and  previously,  while  the  turnips  were  still  in 
the  ground,  the  defendant  severed  and  carried  away  considerable 
quantities  of  them,  which  he  converted  to  his  own  use,  and  for 
which  the  action  was  brought.  There  was  no  note  or  memoran- 
dum in  writing  made  of  the  bargain.  It  was  contended  that  the 
contract  was  void  under  the  second  section  of  the  Irish  act,  as 
being  for  an  interest  in  the  land,  and  Emmerson  v.  Heelis,i  Sco- 
vell  V.  Boxall,^  and  Waddington  v.  Bristow,^  were  relied  on.  But 
the  court  unanimously  held  that  the  contract  was  for  the  sale  of 
goods,  wares,  or  merchandise,  and  being  for  less  than  ,£10  was 
valid.  The  question  is  very  satisfactorily  dealt  with  by  Lord 
Chief  Baron  Joy,  in  delivering  the  unanimous  judgment  of  the 
court.* 


1  2  Taunt.  38. 

2  1  Y.  &  J,  396. 

3  2  B.  &  P.  452. 

*  The  judgment  is  as  follows:  "Joy, 
C.  B.  The  general  question  for  our  deci- 
sion is  wliether,  in  this  case,  there  has 
been  a  contract  for  an  interest  concerning 
lands,  within  the  second  section  of  the 
statute  of  frauds,  or  whether  it  merely  con- 
cerned goods  and  chattels  ;  and  that  ques- 
tion resolves  itself  into  another,  whether 
or  not  a  growing  crop  is  goods  and  chat- 
tels. The  decisions  have  been  very  con- 
tradictory, —  a  result  which  is  always  to 
be  expected  when  the  judges  give  them- 
selves up  to  fine  distinctions.  In  one 
case  it  has  been  held  that  a  contract  for 
potatoes  did  not  require  a  note  in  writing, 
because  the  potatoes  were  ripe  ;  and  in 
another  case  the  distinction  turned  upon 
the  hand  that  was  to  dig  them  ;  so  that  if 
dug  by  A.  B.  they  were  potatoes,  but  if 
by  C.  D.  thev  were  an  interest  in  lands. 
Such  a  course  always  involves  the  judge 
in  perplexity,  and  the  cases  in  obscurity. 
Another  criterion  must  therefore  be  had 
recourse  to  ;  and,  fortunately,  the  later 
cases  have  rested  the  matter  on  a  more 
rational  and  solid  foundation.  At  com- 
mon law  growing  crops  were  uniformly 
held  to  be  goods ;  and  they  were  subject 
to  all  the  legal  consequences  of  being 
goods,  as  a  seizure  in  execution,  etc.  The 
statute  of  frauds  takes  things  as  it  finds 
them  ;  and  provides  for  lands  and  goods 
according  as  they  were  esteemed  before  its 
enactment.  In  tliis  way  the  question  may 
be  satisfactorily  decided.  If,  before  the 
statute,  a  growing  crop  had  been  held  to 
be  an  interest  in  lands,  it  would  come 
within  the  second  section  of  the  act ;  but 
if  it  were  only  goods  and  chattels,  then  it 
came  within  the  thirteenth  section.     On 


this,  the  only  rational  ground,  the  case 
of  Evans  v.  Roberts,  5  B.  &  C.  828;  Smith 
V.  Surman,  9  B.  &  C.  561,  and  Scovell  v. 
Boxall,  1  Y.  &  J.  396,  have  all  been  de- 
cided. And  as  we  thiuk  that  growing 
crops  have  all  the  consequences  of  chat- 
tels, and  are,  like  them,  liable  to  be  taken 
in  execution,  we  must  rule  the  point  saved 
for  the  plaintiff."  The  question  of  the 
right  to  emblements  came  up  under  a  pe- 
culiar state  of  facts  in  Graves  v.  Weld, 
5  B.  &  Ad.  105.  There,  tenant  for  a  term 
determinable  upon  a  life,  sowed  the  land 
in  spring,  first  with  barley,  and  soon  after 
with  clover.  The  life  expired  in  the  fol- 
lowing summer.  In  the  autumn  the  ten- 
ant mowed  the  barley,  together  with  a  lit- 
tle of  the  clover  which  had  sprung  up. 
The  clover  so  taken  made  the  barley  straw 
more  valuable  by  being  mixed  with  it ; 
but  the  increase  of  the  value  did  not  com- 
pensate for  the  expense  of  cultivating  the 
clover,  and  a  farmer  would  not  be  repaid 
such  expense  in  the  autumn  of  the  year  in 
which  it  was  sown.  The  reversioner  came 
into  possession  in  the  winter,  and  took 
two  crops  of  the  same  clover  after  more 
than  a  year  had  elapsed  from  the  sowing. 
It  was  held  that  the  tenant  was  not  enti- 
tled to  emblements  of  either  of  these  two 
crops  :  first,  because  emblements  can  be 
claimed  only  in  a  croj)  of  a  species  which 
ordinarily  repays  the  labor  by  which  it  is 
produced  within  the  year  in  which  the 
labor  is  bestowed  ;  and,  secondly,  because, 
even  if  the  tenant  were  entitled  to  one 
crop  of  the  vegetable  growing  at  the  time 
of  the  cesser  of  his  interest,  this  had  been 
already  taken  by  him  at  the  cutting  of  the 
barley. 

The  principal  authorities  upon  which 
the  law  of  emblements  depends  are  Little- 
ton, §  08,  and  Coke's  commentary  on  that 


232 


COMMENTARIES   ON   SALES. 


[book  IV. 


Ill  a  preceding  Irish  case^  the  decision  was  the  same  way. 
There  trover  was  brought  for  twenty  acres  of  growing  barley; 
and  althou'^-h  it  was  strongly  insisted  that  the  action  did  not  lie, 
the  court  of  King's  Bench  held  the  contrary,  on  the  ground  that, 
whether  growing  or  not,  the  crops  would  be  emblements,  which 
would  go  to  the  executor,  and  might  be  seized  under  an  execution. 

The  case  of  Jones  v.  Flint^  was  decided  on  the  same  principle. 
There  plaintiff  and  defendant  orally  agreed,  in  August,  that  de- 
fendant should  give  <£45  for  the  crop  of  corn  on  plaintiff's  land, 
and  the  profit  of  the  stubble  afterwards  ;  that  plaintiff  was  to  have 
liberty  for  his  cattle  to  run  with  defendant's ;  and  that  defendant 
was  also  to  have  some  potatoes  growing  on  the  land,  and  whatever 
lay  grass  was  in  the  fields ;  defendant  was  to  harvest  the  corn, 
and  dig  up  the  potatoes,  and  plaintiff  was  to  pay  the  tithe.  The 
crops,  etc.,  were  taken  by  the  defendant  in  conformity  with  the 
agreement.  In  assumpsit  for  the  price,  the  defendant  relied  on 
the  Statute  of  Frauds.  The  court  held  that  as  to  the  crops  of 
corn,  potatoes,  and  the  after  profit  of  the  stubble,  the  contract 
was  for  the  sale  of  goods,  wares,  and  merchandise  within  the  sev- 


passage.  The  former  is  as  follows  :  "  If 
the  lessee  soweth  the  land,  and  the  lessor, 
after  it  is  sown  and  before  the  corn  is 
ripe,  put  him  out,  yet  the  lessee  shall 
have  the  corn,  because  he  knew  not  at 
what  time  the  lessor  would  enter  upon 
him."  Coke  says  (Co.  Litt.  55a):  "The 
reason  of  this  is,  for  that  the  estate  of 
the  lessee  is  uncertain,  and  therefore,  lest 
the  ground  should  be  unmanured,  which 
should  be  hurtful  to  the  commonwealth, 
he  shall  reap  the  crop  which  he  sowed  in 
peace,  albeit  the  lessor  doth  determine  iiis 
will  before  it  be  ripe.  And  so  it  is  if  he 
set  roots  or  sow  hemp  or  flax,  or  any  other 
annual  profit,  —  if,  after  the  same  be 
planted,  the  lessor  oust  the  lessee,  or  if 
the  lessee  dieth,  yet  he  or  his  executors 
shall  have  that  year's  crop.  But  if  he 
plant  young  fruit-trees,  or  young  oaks, 
ashes,  elms,  etc.,  or  sow  the  ground  with 
acorns,  etc.,  there  the  lessor  may  put  him 
out,  notwithstanding,  because  they  will 
yield  no  present  annual  profit."  The  case 
of  hops,  which  grow  from  ancient  roots, 
and  which  yet  may  be  emblements,  are  an 
apparent  exception  to  this  rule.  But  in 
Latham  v.  Atwood,  Cro.  Car.  515,  they 
were  held  to  be  "  like  emblements,"  be- 
cause they  were  "  such  things  as  grow  by 
the  manurance  and  industry  of  the  owner, 
by  the  making  of  hills  and  setting  poles," 
the  labor  and  expense,  without  which  they 
would  not  grow  at  all,  seeming  to  have 
been  deemed  equivalent  to  the  sowing  and 
planting  of  other  vegetables.     In  Cruise's 


Dig.  I.,  110  a,  it  is  said  that  this  determi- 
nation was  probably  on  account  of  the 
great  expense  of  cultivating  the  ancient 
roots.  Blackstone  says  :  "  If  a  tenant  for 
his  own  life  sows  the  lands,  and  dies  be- 
fore harvest,  his  executors  shall  have  the 
emblements  or  profits  of  the  crop,  for  the 
estate  was  determined  by  the  act  of  God  ; 
and  it  is  a  maxim  of  the  law  that  aclus 
Dei  neminifacit  injuriam.  The  represen- 
tatives, therefore,  of  the  tenant  for  life 
shall  have  the  emblements  to  compensate 
for  the  labor  and  expense  of  tilling,  ma- 
nuring, and  sowing  the  lands  ;  and  also 
for  the  encouragement  of  husbandry,  which, 
being  a  public  benefit  tending  to  the  in- 
crease and  plenty  of  provisions,  ought  to 
have  the  utmost  security  and  privilege 
that  the  law  can  give  it."  And  again  : 
"The  doctrine  of  emblements  extends  not 
only  to  corn  sown,  but  to  roots  planted, 
or  other  annual  artificial  profit  ;  but  it  is 
otherwise  of  fruit  trees,  grass,  and  the  like, 
which  are  not  planted  annually  at  the  ex- 
pense and  labor  of  the  tenant,  but  are 
either  a  pennanent,  or  natural,  profit  of 
the  earth.  For  when  a  man  ]>lants  a  tree 
he  cannot  be  presumed  to  plant  it  in  con- 
templation of  any  present  profit,  but  merely 
with  a  prospect  of  its  being  useful  to  him- 
self in  future,  and  to  future  successions  of 
tenants."     Blk.  Com.  122,  123. 

1  Jovce  V.  Havman,    K.  B.  Ire.  T.  T. 
1831;  4  Ir.  Law  Rev.  273. 

2  10  A.  &  E.  753. 


PART  I.]         WHAT   ARE   WITHIN   THE   STATUTE   OF    FRAUDS. 


233 


eiiteentli  section  of  the  statute,  and  not  within  the  fourth ;  and 
the  contract  with  reference  to  the  lay  grass,  was,  in  effect,  a  con- 
tract for  the  agistment  by  the  plaintiff  of  the  defendant's  cattle  ; 
that  the  possession  of  the  land  was,  therefore,  not  in  the  defend- 
ant, but  in  the  plaintiff ;  and,  hence,  as  to  the  eating  of  the  lay 
grass,  it  did  not  come  within  the  fourth  section  of  the  statute.^ 


1  Lord  Denman,  in  delivering  the  judg- 
ment of  the  court,  said :  "  Nothing,  it  will 
be  observed,  was  expressly  agreed  on  as  to 
the  possession  of  the  land.  It  will  be  our 
duty,  therefore,  in  construing  the  contract 
as  to  this  particular,  to  have  regard  to 
its  subject-matter,  and  to  imply  so  much, 
and  only  so  much,  as  is  necessary  to  give 
full  effect  to  its  expressed  terms,  nothing 
appearing  in  the  subsequent  acts  of  the 
parties  to  influence  our  construction  either 
way.  Three  things  were  the  subject-mat- 
ter of  the  contract,  —  crops  of  corn,  pota- 
toes, and  the  after  eatage  of  stubble  and 
lay  grass.  Of  these  all  but  the  lay  grass 
are  frudus  industr tales ;  as  such  they  are 
seizable  by  the  sherifi"  under  a  fieri  facias, 
and  go  to  the  executor,  not  to  the  heir. 
If  they  had  been  ripe  at  the  date  of  the 
contract,  it  may  be  considered  now  as  quite 
settled  that  the  contract  would  have  been 
held  to  be  a  contract  merely  for  the  sale  of 
goods  and  chattels.  And,  although  they 
had  still  to  derive  nutriment  from  the  land, 
yet  a  contract  for  the  sale  of  them  has 
been  determined  from  this  their  original 
character  not  to  be  on  that  account  a  con- 
tract for  the  sale  of  any  interest  in  land." 
(See  Evans  v.  Roberts,  5  B.  &  C.  829;  ante, 
229.)  "  The  present  case  differs  from  Evans 
V.  Roberts  in  this,  that  there  the  potatoes 
were  to  be  dug  up  by  the  seller  ;  the  judg- 
ments, however,  do  not  proceed  on  this 
distinction,  although  it  was  not  unnoticed. 
Holroyd,  J.,  expressly  says  that,  even  if 
they  were  to  be  dug  up  by  the  buyer,  '  I 
think  he  would  not  have  had  an  interest 
in  the  land.'  And  we  agree  that  the  safer 
grounds  of  decision  are  the  legal  character 
of  the  principal  subject-matter  of  sale,  and 
the  consideration  whether,  in  order  to  effec- 
tuate the  intentions  of  the  parties,  it  is 
necessary  to  give  the  vendee  an  interest  in 
the  land.  Tried  by  these  tests,  we  think 
that,  if  the  lay  grass  be  excluded,  the  par- 
ties must  be  taken  to  have  been  dealing 
about  goods  and  chattels,  and  that  an 
easement  of  the  right  to  enter  the  land 
lor  the  purpose  of  harvesting  and  carrying 
them  away  is  all  that  was  intended  to  be 
granted  to  the  purchaser."  On  the  other 
point  decided  the  court  said  :  "Upon  this 
priiiciplc  we  are  to  examine  whether  the 
introduction  of  the  lay  grass  into  the 
contract  ought  to  vary  the  decision.  This 
is  the  natural  produce  of  the  land,  not 


distinguishable  from  the  land  itself,  in 
legal  contemplation,  until  actual  sever- 
ance. It  passes  accordingly  to  the  heir, 
not  to  the  executor ;  and  in  Crosby  v. 
Wadsworth,  6  East,  602,  it  was  decided 
that  the  purchaser  of  a  crop  of  mowing 
grass,  unripe,  and  which  he  was  to  cut, 
took  an  exclusive  interest  in  the  land  before 
the  severance.  If,  therefore,  this  be  a  case 
in  which  the  parties  intended  a  sale  and 
purchase  of  the  grass,  to  be  mowed  or  fed 
by  the  buyer,  both  on  principle  and  au- 
thority the  objection  of  the  defendant  must 
prevail.  Looking,  however,  at  the  facts, 
we  think  this  was  not  such  a  bargain.  It 
may  well  be  doubted,  upon  all  the  evi- 
dence, whether  anything  that  could  be 
called  a  crop  of  grass  was  in  the  ground, 
or  in  the  contemplation  of  the  parties  at 
all,  for  it  does  not  appear  that  any  clover 
or  other  grass  had  been  sown  with  the 
corn ;  and  the  word  '  grass '  seems  merely  to 
have  been  adopted  by  the  witness  in  cross- 
examination  from  the  defendant's  counsel. 
But,  not  relying  upon  this,  we  find  that 
the  plaintifT  was  to  pay  the  tithe,  and 
that,  after  the  harvesting,  he  reserved  to 
himself  the  right  of  turning  his  own  cat- 
tle into  the  fields  ;  and  we  think  that, 
however  expressed,  the  more  reasonable 
construction  of  the  contract  is  that  the 
possession  of  the  field  still  remained  with 
the  owner  after  the  harvesting  as  before. 
It  was  not  necessary  to  the  vendee  before 
on  account  of  the  gi'ass,  because  that,  what- 
ever it  was,  could  not  then  be  got  at ;  nor 
did  it  need  preservation  ;  and  afterwards 
it  is  more  reasonable  to  consider  the  owner 
as  agisting  the  vendee's  cattle  than  as  hav- 
ing his  own  cattle  agisted  by  him  whose 
interest  at  the  best  was  of  so  very  limited 
a  nature.  Upon  these  grounds,  not  im- 
peaching the  principle  of  Crosby  v.  Wads- 
worth,  6  East,  602,  but  deciding  on  the 
additional  facts  in  this  case,  we  think  this 
incident  in  the  contract  does  not  alter  its 
nature  ;  and  the  objection  founded  on  the 
statute  will  not  prevail."  Wood  v.  Man- 
ley,  11  A.  &  E.  34,  although  not  a  case 
within  the  statute  of  frauds,  shows  the 
right  of  a  vendee  of  goods,  wares,  and 
merchandise,  which  are  within  the  17th 
section  of  the  statute,  to  enter  on  the 
lauds  under  a  license  for  the  removal  of 
the  goods.  There  goods  which  were  upon 
plaintifi"'s  land  were  sold  to  defendant  by 


234  COMMENTARIES    ON   SALES.  [BOOK  IV. 

Similar  questions  have  been  decided  in  the  Court  of  Exchequer. 
In  Earl  of  Falmouth  v.  Thomas,^  the  question  came  up  on  demur- 
rers to  the  defendant's  pleas.  The  contract  there  declared  upon 
was  that  the  plaintiff,  who  was  possessed  of  a  farm,  upon  which 
were  certain  growing  crops,  and  on  which  the  plaintiff  had  done 
certain  work  and  labor,  and  expended  certain  materials  in  mak- 
ing the  lands  ready  for  tillage,  of  which  work,  labor,  and  mate- 
rials he  had  not  derived  the  benefit,  would  let  the  farm  to  the 
defendant  for  a  term  of  years ;  and  in  consideration  thereof  the 
defendant  undertook  to  take  the  crops  and  pay  for  them,  and  for 
the  work,  labor,  and  materials,  according  to  a  valuation.  The 
plaintiff  let  the  farm  accordingly,  and  left  the  crops  upon  it.  The 
defendant  took  possession  of  the  farm,  and  had  the  benefit  of  the 
work,  labor,  and  materials.  The  valuation  was  made,  but  the  de- 
fendant did  not  pay.  The  court  held  that  the  contract  was  within 
the  fourth  section  of  the  statute  ;  that  the  defendant  could  not  have 
the  benefit  of  the  work,  labor,  and  materials  unless  he  had  the 
land  ;  and  that  the  right  to  the  crops,  and  the  benefit  of  the  work, 
labor,  and  materials,  were  both  of  them  an  interest  in  the  land. 
But  that,  if  either  of  the  two  were  properly  an  interest  in  land,  this 
would  form  a  sufficient  objection  to  an  action  on  the  contract ; 
for  the  crops  and  work  and  labor,  united,  were  the  consideration 
for  the  contract,  and  if  either  part  of  the  consideration  failed,  the 
plaintiff  would  not  be  entitled  to  recover.^ 

Carrington  v.  Roots  ^  was  an  action  of  trespass  for  seizing 
and  impounding  the  plaintiff's  horse  and  cart.  The  defendant 
pleaded  that  he  was  possessed  of  a  certain  close  and  crop  of  grass 
thereon,  and  that  he  distrained  the  horse  and  cart  for  being  un- 
lawfully on  his  close,  and  doing  damage.  The  plaintiff,  in  his 
replication,  alleged  a  contract  (which  proved  to  be  verbal)  under 
which  he  had  bought  the  crop  of  the  grass  from  the  plaintiff  with 
liberty  to  enter  and  cut  the  grass  when  ready  to  be  cut,  and  that 
he  was  on  the  close  with  his  horse  and  cart  for  the  purpose  of 
cutting  and  removing  the  grass.  The  court  held  that  if  this 
were  a  contract  under  the  seventeenth  section  of  the  act,  it  was 

the  plaintiffs  landlord  under  a  distress,  entry  locked  the  gates  and  forbidden  de- 

By  the  conditions  of  sale,  to  which  plain-  fendant  to  enter,  and  defendant  had  broken 

tiff  was  a  party,  the  buyer  was  to  be  al-  down  the  gates,  and  entered  to  take  the 

lowed  to  enter  and  take  the  goods.     It  was  goods.     And  see  Winter  v.  Brock  well. 


held  that,  after  the  sale,    plaintiff  could  East,  308;  Tayler  v.  Waters,  7  Taunt.  374; 

not  countermand  the  license.     And,   de-  Liggins  v.  Inge,  7  Bing.  682;   Bridges  v. 

fendant  having  entered  to  take,  and  plain-  Blanchard,  1  A.  &  E.  536,  further,  as  to 

tiff  having  brought  trespass,  and  defend-  leave  and  license, 
ant  having  pleaded  leave  and  license  and  ^  1  Cr.  &  M.  88. 

a  peaceable  entry  to  take,  to  which  plain-  2  gee  Thomas  i-.  Williams,  10  B.  &  C. 

tiff  replied  de  injuria,  that  defendant  was  664;  Chater  v.  Beckett,  7  T.  R.  20;  Neale 

entitled  to  the  verdict,  though  it  appeared  v.  Viney,  1  Camp.  471. 
that  plaintiff  had  between  the  sale  and  the  ^  2  M.  &  W.  248. 


PART   I.]         WHAT   ARE   WITHIN   THE   STATUTE   OP   FRAUDS.  235 

void,  and  if  under  the  fourth  section,  being  void  under  it,  no  ac- 
tion could  be  sustained  vvliich  depended,  as  in  this  case,  on  an  as- 
sumption of  the  validity  of  the  contract.  If  the  plaintiff  had  been 
sued  by  the  defendant  in  trespass,  he  might  have  pleaded  a  license. 
The  agreement  might  have  been  available  in  answer  to  a  trespass, 
by  setting  up  a  license  ;  not  setting  up  the  contract  itself  as  a 
contract,  but  only  showing  matter  of  excuse  for  the  trespass.  In 
this  case  license  was  not  alleged,  but  the  contract  itself  was 
relied  on. 

In  Sainsbury  v.  Matthew^s,^  the  defendant  in  the  month  of 
June  agreed  to  sell  to  the  plaintiff  the  potatoes  then  growing 
on  a  certain  quantity  of  land  of  the  defendant,  at  2s.  per  sack, 
the  plaintiff  to  have  them  at  digging-u^  time  (October),  and 
to  find  diggers.  It  was  held  that  this  was  not  a  contract  for 
the  sale  of  an  interest  in  land,  within  the  fourth  section  of  the 
statute. 2 

In  Rodwell  v.  Phillips,^  where  the  question  came  up  under  the 
Stamp  Act,  it  was  held  that  an  agreement  for  the  sale  of  growing 
fruit  from  pear-trees  is  not  a  contract  for  the  sale  of  goods,  wares, 
and  merchandise,  but  is  an  agreement  for  the  sale  of  an  interest 
in  land,  and  if  of  the  value  of  <£20  requires  a  stamp.  The  ground 
upon  which  this  case  was  decided  was  that  such  fruit  is  not  fructus 
industriales  ;  passes  to  the  heir,  and  not  to  the  executor ;  cannot 
be  taken  by  a  tenant  for  life,  or  levied  in  execution  under  a  writ 
oi  fi.fa.  by  the  sheriff ;  therefore  it  is  distinct  from  all  those  cases 
where  the  interest  would  pass,  not  to  the  heir-at-law,  but  to  some 
other  person ;  the  difference  appearing  to  be  between  annual 
productions  raised  by  the  labor  of  man,  and  the  annual  produc- 
tions of  nature,  not  referable  to  the  industry  of  man,  except  at 
the  period  when  they  were  first  planted.*  There  is  another  point 
in  this  case  which  escaped  notice.  The  purchase  was  on  the  14th 
of  July,  of  the  pears  on  the"  trees,  then  growing,  for  the  one  spe- 
cific sum  of  £30,  on  which  a  deposit  of  £1  was  then  paid.  Hence, 
if  the  contract  had  been  binding,  the  property  in  the  fruit  on  the 
trees  would  then  have  passed  to  the  vendee  ;  and  any  loss  prior 

1  4  M.  &  W.  343.  land.     If  a  tempest  had  destroyed  the  crop 

2  Lord  Abinger  said:  "  I  think  this  was  in  the  meantime,  and  there  had  been  none 
not  a  contract  giving  an  interest  in  the  to  deliver,  tlie  loss  would  clearly  have 
land.  It  is  only  a  contract  to  sell  pota-  fallen  upon  the  defendant.  The  case  is 
toes  at  so  much  a  sack  on  a  future  day,  to  stronger  than  that  of  Evans  t;.  Roberts, 
be  taken  up  at  the  expense  of  the  vendee.  5  B.  &  C.  829,  because  here  there  is  only 
He  must  give  notice  to  the  defendant  for  a  stipulation  to  pay  so  much  per  sack  for 
that  purpose,  and  cannot  come  upon  the  the  potatoes  when  delivered.  It  is  only  a 
land  when  he  pleases."  And  Parke,  B. :  contract  for  goods  to  be  sold  and  deliv- 
"This  is  a  contract  for  the  sale  of  goods  ered." 

and  chattels  at  a  future  day,  the  produce  ^  9  M.  &  W.  501. 

of  certain  land,  and  to  be  taken  away  at  a  *  Per  Lord  Abinger,  ibid,  at  p.  503. 

certain  time.     It  gives  no  right  to  the 


236 


COMMENTARIES   ON   SALES. 


[book  IV. 


to  the  gathering  of  the  fruit  would  have  been  his,  and  not  that  of 
the  vendor.  This  is  quite  different  from  the  case  where  the  con- 
tract is  for  future  delivery  at  a  price  to  be  ascertained  at  the  time 
of  the  delivery.  Here,  the  loss  prior  to  the  delivery  would  be  in 
the  vendor,  and  would  be  but  a  contract  for  the  sale  of  goods  for 
future  delivery,  giving  the  vendee  no  interest  in  the  land.^ 


1  In  this  case,  Parke,  B.,  at  p.  503, 
referring  to  Waddington  v.  Bristow,  2 
Bos.  &  P.  452,  said:  "Hops  a.re  fructus 
induslriales.  That  case  would  now  prob- 
ably be  decided  differently."  We  have 
already  pointed  out  that  Waddington  v. 
Bristow  was  not  decided  under  the  statute 
of  frauds  at  all,  but  under  the  Stamp  Act. 
The  case  does  not  decide  that  the  contract 
would  not  have  been  within  the  17th  sec- 
tion of  the  statute  of  frauds,  nor  does  it 
decide  that  it  would  have  been  within  the 
4th  section  of  that  statute.  The  exemp- 
tion under  the  Stamp  Act  only  related  to 
agreements  for  or  relating  to  the  sale  of 
any  goods,  wares,  or  mercliandises.  What, 
in  effect,  the  court  held  was,  not  that  this 
was  a  contract  for  the  sale  of  an  interest 
in  lands,  but  that,  on  the  contrary,  it  was 
"«H  ayreenuntfor  the  sale  of  goods,  wares, 
and  merchandise,  and  something  more." 
But  that  "something  more"  was  not  at 
all  necessarily  a  contract  for  an  interest  in 
lands.  The  argument  of  Sergeant  Shep- 
herd is  not  addressed  to  the  contention  of 
there  having  been  any  such  interest  ;  but 
rather  to  this,  that  though  it  was  a  sale 
of  goods  "before  the  goods  were  in  esse,"  it 
was  not,  therefore,  any  the  less  a  sale  of 
the  goods  than  it  would  have  been  if  a 
wine  merchant  undertook  to  deliver  a  cer- 
tain quantity  of  wine  in  the  ensuing  year 
of  the  vintage  of  the  current  year.  And 
Eooke,  J.,  puts  it  thus:  "The  object  of 
the  legislature  in  introducing  the  excep- 
tion of  the  4th  section  [of  the  Stamp  Act] 
was  to  prevent  the  duty  which  had  been 
imposed  by  the  1st  section  upon  all  agree- 
ments generally  from  impeding  ordinary 
commercial  transactions.  But  tlie  subject 
of  the  agreement  is  a  speculative  bargain 
relative  to  things  not  in  esse  at  the  time 
when  the  contract  was  made."  The  case 
would  seem  to  hold  that  though  the  sale 
was  an  agreement  for  the  sale  of  goods, 
wares,  and  merchandise  which  would  come 
within  the  purview  of  the  17th  section  of 
the  statute  of  frauds,  yet  that  there  was 
something  more  in  the  contract,  of  a 
"speculative"  character,  which  prevented 
it  from  being  confined  to  the  strict  limits 
of  the  4th  section  of  the  Stamp  Act.  Jones 
u.  Flint,  10  A.  &  E.  753,  is  a  case  which 
might  be  similarly  treated.  There  the 
sale  was  of  a  crop  of  corn  and  potatoes, 
which  was  held  to  come  within  the  17th 


section,  and  not  the  4th  section,  of  the 
statute.  But  there  was  a  further  por- 
tion of  the  contract  which  ^s  held  to  be 
for  an  agistment  of  cattle,  and,  therefore, 
neither  within  the  4th  nor  the  17th  sec- 
tion of  the  statute.  Hence,  while  in  this 
case  the  sale  of  the  corn  and  potatoes 
would  be  a  contract  within  the  17th  sec- 
tion of  the  statute  of  frauds,  as  a  sale  of 
goods,  wares,  and  merchandise,  it  would  not 
as  a  whole  be  a  contract  within  the  exemp- 
tion of  the  Stamp  Act,  because  it  was  not 
only  a  contract  for  the  sale  of  goods,  wares, 
and  merchandise,  as  the  contract  was  held 
to  be  in  Waddington  v.  Bristow,  2  Bos.  &  P. 
452,  but,  as  was  also  held  in  that  case, 
"something  more."  So  that,  in  one  case 
as  in  the  other,  the  contract  might  be 
held  to  be  within  the  17th  section  of  the 
statute  of  frauds,  and  not  within  the  4th 
section  of  the  Stamp  Act.  As  will  thus 
be  seen,  the  difference  between  the  effect 
of  the  17th  section  of  the  statute  of  frauds 
and  the  4th  section  of  the  Stamp  Act  is 
very  material.  Under  the  former,  if  the 
contract  do  not  come  within  the  4th  sec- 
tion of  the  statute  of  frauds,  and  is  good 
as  a  contract  for  the  sale  of  goods,  wares, 
and  merchandise  under  the  17th  section, 
it  is  good  no  matter  what  else  it  may  con- 
tain. But  under  the  4th  section  of  the 
Stamp  Act,  the  exemption  from  stamp 
duty  only  extends  to  contracts  for  the 
sale  of  goods,  wares,  and  merchandise. 
Hence,  if  it  is  a  contract  for  anything 
else,  or  for  that  and  anything  else,  — 
whether  it  is  matter  within  the  4th  sec- 
tion of  the  statute  of  fraud.«  or  not,  —  it 
is  not  a  contract  which  comes  within  the 
exemption  of  the  Stamp  Act.  Therefore 
it  follows  that  a  contract  for  the  sale  of 
goods,  wares,  and  merchandise  may  be 
perfectly  valid  under  the  17th  section  of 
the  statute  of  frauds,  and  not  be  within 
the  exemption  of  the  4th  section  of  the 
Stamp  Act.  Hence  Waddington  v.  Bris- 
tow, 2  Bos.  &  P.  452,  may  have  been  — 
though  we  think  it  was  not  even  that 
—  a  well -decided  case  under  the  Stamp 
Act,  and  yet  have  no  bearing  whatever 
upon  the  question  of  the  proper  construc- 
tion of  the  statute  of  frauds. 

This  reasoning  is  fully  sustained  by  the 
decision  of  the  Court  of  Exchequer  in 
Horsfall  v.  Hey,  2  Ex.  778,  which  was 
another  case  under  the  Stamp  Act  (55 


PART   I.]         WHAT   ARE   WITHIN   THE   STATUTE    OP    FRAUDS.  237 

The  2  &  3  Vic.  c.  37,  which  in  some  respects  repeals  the  usury 
laws,  provides  "  that  nothing  therein  contained  shall  extend  to  the 
loan  or  forbearance  of  any  money  upon  security  of  any  land,  tene- 
ments, or  hereditaments,  or  any  estate  or  interest  therein."  A 
question  arose  in  Washbourn  v.  Burrows,^  the  decision  of  which  is 
equally  applicable  to  the  construction  of  the  fourth  and  seven- 
teenth sections  of  the  Statute  of  Frauds.  The  action  was  in  cove- 
nant for  payment  of  .£250  and  interest  on  demand.  The  defendant 
pleaded  that  the  covenant  was  entered  into  in  pursuance  of  an  usu- 
rious contract,  by  which  the  defendant  agreed  to  pay  more  than  £5 
per  cent,  by  way  of  interest,  and  that  the  payment  was  secured  by 
a  deed,  whereby  the  defendant  bargained  and  sold  to  the  plaintiff, 
by  way  of  security,  certain  personal  chattels,  and  also  "  the  crops 
of  grass  then  growing  on  certain  lands.''''  The  plaintiff  replied 
that  the  contract  was  entered  into  after  the  passing  of  2  &  3  Vic. 
c.  37.  It  was  held,  on  general  demurrer,  that  the  plea  was  good, 
and  the  replication  bad ;  for  though  the  term  "  crops  of  grow- 
ing grass  "  might  mean  crops  to  be  severed  by  the  owner  of  the 
soil,  and  delivered  as  a  personal  chattel,  yet  the  plea  afforded 
a  good  prima  facie  answer  to  the  action,  it  being  sufficient  for 
the  defendant  to  show  that  the  contract  was  injurious  within  the 
12  Anne,  sec.  2,  c.  16  (that  statute  being  still  in  force  as  far  as  it 
was  not  affected  by  the  statute  of  2  &  3  Vic.)  ;  and  if  the  plain- 
tiff relied  upon  the  2  &  3  Vic.  c.  37  as  excepting  the  case  from 
the  operation  of  the  act  of  12  Anne,  he  should  have  replied  that 
the  contract  was  entered  into  after  the  passing  of  the  statute  of 
Victoria,  and  that  the  security  did  not  relate  to  land.^ 

Geo.  3,  c.  184).      This  was  an  action  of  12  Moore,  213,  also  showing  that  fixtures 

trover    for  goods,    chattels,    and    effects,  are  not  goods  within  the  exemption  in  the 

There  was  a  written  memorandum  of  sale  Stamp  Act. 

by  the  defendant  to  the  plaintiff  of  "all  i  1  Ex.  107- 

the  goods,   stock-in-trade,   and   fixtures  "  ^  xhis  case  sustains  the  principle  that 

in  A.  for  £90.     It  was  held  that  this  in-  a  contract  for  the  sale  of  growing  grass, 

strument,  being  a  conveyance  relating  to  as  well  as  growing  timber,  growing  fruit, 

the  sale,  would  have  been  within  the  ex-  or  any  other  growing   crop,    though   not 

emption  of  the  act,  and  required  no  stamp,  coming  within  the  description   of  fructus 

if  it  had  not  also  embraced  the  transfer  of  industrial es,  may  or  may  not  be,  accord- 

fixtures.     And  yet,  as  it  is  now  well  es-  iug   to   the   particular  facts  which  show 

tablished  (see  infra)  that  the  sale  of  un-  that  it  is  or  is  not  a  contract  with  refer- 

severed  fixtures  is  neither  within  the  4th  ence  to  an  interest  in  or  concerning  lands, 

nor  the    17th   section  of   the   statute   of  within  the  4th  or  17th  section  of  the  stat- 

frauds,  a  written  contract  for  the  sale  of  ute  of  frauds.     Gray,  of  counsel  for  the 

goods,  wares,   and  merchandise,   meeting  plaintiff,  contended  that  it  was  not  shown 

the    requirements    of    the    17th   section,  by  the  plea  that  the  loan  was  secured  on 

would   be  perfectly  good  though  it  con-  an  interest  in  land  ;  that  the  term  "grow- 

tained  a  provision  also  for  the  sale  of  fix-  ing  crops  of  grass  "  does  not  necessarily 

tures,   as  it  would   be  if  it  contained  a  imply  an   interest   in    land,  and  that   it 

provision  for  the  agistment  of  cattle  ;  for  might  mean  crops  of  grass  which  are  not 

work  and  labor  ;  for  the  sale  of  res  incor-  the    natural    produce   of    the   land,    and 

porales ;  or  for  any  other  contract  not  re-  which  would  not  pa.ss  to  the  heir,  but  to 

quired  to  be  evidenced  in  writing  under  the  executor ;  or  it  might  mean  crops  of 

the  statute.     And  see  Wick  v.  Hodgson,  grass  then  growing,  but  to  be  afterwards 


238 


COMMENTARIES   ON   SALES. 


[book  IV. 


The  law  is  admirably  summarized  by  Brett,  J.,  in  Marshall  v. 
Green,^  where  it  was  held  that  a  sale  of  growing  timber  to  be 
taken  away  as  soon  as  possible  by  the  purchaser,  is  not  a  con- 
tract for  the  sale  of  land,  or  any  interest  therein,  within  the 
fourth  section  of  the  Statute  of  Frauds.  The  law  as  summa- 
rized by  Brett,  J.,  is  as  follows :  "  When  the  subject-matter  of 
the  contract  is  something  affixed  to  laud,  the  question  is  whether 
the  contract  is  intended  to  be  for  the  purchase  of  the  thing  affixed 
only,  or  of  an  interest  in  the  land  as  well  as  the  thing  affixed. 
In  the  former  case  the  contract  is  not  within  the  fourth  section. 


cut  and  delivered  as  goods  and  chattels. 
Alderson,  B.,  in  effect  assenting  to  this, 
added  :    "  The  case   mentioned   by    Lord 
Abinger,  in  Rod  well  v.  Phillips,  9  M.  & 
W.  505,  in  which  a  contract  to  sell  timber 
growing  was  held  not  to  convey  any  inter- 
est in  the  land.  Smith  v.  Surman,  9  B.  & 
C.  561,  is  explained  by  what  is  said  by 
Bayley,  J.,  in  his  judgment  in  Evans  v. 
Roberts,  5  B.  «S:  C.  829  ;  it  was  in  fact  a 
contract  to  sell  timber  as  a  chattel."     The 
ground  of  the  decision  is  very  jdainly  put 
by  Rolfe,  B.,  in  delivering  the  judgment 
of  the  court:  "The  question  is,  whether 
the  contract  stated   in   the  plea   is  void 
under  the  statute  of  Anne,  notwithstand- 
ing the  statute  of  Victoria.     It  certainly 
is  void,  if  the  plea  sufficiently  shows  that 
the  security  consisted  in  part  of  an  inter- 
est in  land,  for  the  statute  of  Victoria  has 
no  application  to  such  securities.     Now, 
part  of  the  property  assigned  by  way  of 
security  to  the  lender  of  the  money,  con- 
sisted of  certain  crops  of  grass,  described 
in  the  deed  as  growing  on  a  certain  estate 
called  the  Sheeping-house  estate,  and  it 
was  argued,  on  the  authority  of  Crosby  v. 
Wads  worth,  6  East,  602,  that  this  is  an 
interest  in  land.     When  a  sale  of  growing 
crops  does,  and  when  it  does  not,  confer 
an  interest  in  land,  is  often  a  question  of 
much  nicety ;    but   certainly,    when   the 
owner  of  the  soil  sells  what  is  growing  on 
the  land,  whether  natural  produce,  as  tim- 
ber, grass,  or  apples,  or  fructus  industri- 
ales,   as  corn,  pulse,  or  the  like,  on  the 
terms  that  he  is  to  cut  or  sever  them  from 
the  land,  and  then  deliver  them  to  the 
purchaser,  the  purchaser  acquires  no  in- 
terest in  the  soil,  which  in  such  case  is 
only  in  the  nature  of  a  warehouse  for  what 
is  to  come  merely  as  a  personal  chattel. 
The  doubt  here  is,  what  is  the  true  mean- 
ing of  the  plea  as  to  these  crops.     Mr. 
Gray  argued  that  the  plea  would  be  satis- 
fied  by   proving    that  the  plaintiff,    not 
being  the   owner  of  the   Sheeping-liouse 
estate,  was  yet  entitled   to  the  grass   in 
question,  as  having  purchased  it  on  the 
terms  that  it  was  to  be  severed  by  the 


owner  of  the  soil,  and  then  delivered  to 
him  as  a  mere  personal  chattel ;  and  we 
are  inclined  to  attach  great  weight  to  this 
argument,  and  think  the  case  will  be  in 
the  same  position  as  if  the  plea  had  con- 
tained no  reference  to  the  subject-matter 
of  the  security,   but  had  merely  alleged 
that  the  covenant  sued  on  was  void,  as 
having  been  entered  into  pursuant  to  an 
usurious  contract  for  taking  more  than  £5 
per  cent,  interest.     Such  a  contract  would 
clearly  be  void  under  the  statute  of  Anne, 
and  that  statute  being  still  in  force,  the 
plea  is  prima  facie  a  good  answer  to  the 
plaintiff's  demand,  according  to  the  princi- 
ple laid  down  in  Thibault  r.  Gibson,  12  M. 
&  W.  88.  The  question  then  arises,  whether 
the  plaintiff  gets  rid  of  the  effect  of  the 
statute  of  Anne,   by  merely  stating  that 
the  contract  was  entered   into  after  the 
passing  of  the  statute  of  Victoria.      We 
think    he   does   not.     The   true  effect   of 
the  statute  of  Victoiia  is  to  except  from 
the  operation  of  the  statute  of  Anne  all 
contracts  not  relating  to  land  ;  and  when 
the   defendant    has   by   his    plea    clearly 
brought  the  case  within  the  operation  of 
the  old  statute,  it  is  not  sufficient  for  the 
plaintiff  to  reply  that  which  may  or  may 
not  bring  the  contract  within  the  operation 
of  the  statute  of  Victoria.     It  was  incum- 
bent on  him  to  aver  all  which  is  necessary 
to  show  that  the  statute  of  Anne  does  not 
apply  to  the  question,  —  namely,  that  it 
was  entered  into  after  the  passing  of  the 
statute  of  Victoria,  and  that  it  does  not 
relate  to  land.     The  replication  does  aver 
that  the  contract  was  after  the  statute  of 
Victoria,  but  omits  to  aver  that  it  does  not 
relate  to  land.     It  therefore  fails  to  show 
what  the  plaintiff  was  bound  to  make  out, 
namely,  that  the  statute  of  Anne  does  not 
apply.     On  these  grounds,  therefore,  even 
adopting  Mr.  Gray's  argument,  as  we  are 
inclined  to  do,  that  the  pica  does  not  show 
affirmatively  that  the  security  did  comprise 
an  interest  in  land,  still  we  think  that  the 
plea  is  good,  and  that  the  replication  offers 
no  sufficient  answer." 
M  C.  P.  Div.  35,  42. 


PART   I.]        WHAT   ARE   WITHIN   THE   STATUTE   OF   FRAUDS.  239 

Certain  tests  have  been  judicially  agreed  on  with  regard  to  this 
question,  many  if  not  all  of  which  are  contained  in  the  note  to 
Duppa  V.  Mayo,^  in  the  last  edition  of  Williams'  Saunders,  which 
has  the  authority  of  that  profound  lawyer,  the  late  Sir  E.  V.  Wil- 
liams. That  note  gives  certain  tests  as  applicable  to  particular 
cases.  Where  the  subject-matter  of  the  contract  is  growing  in  the 
land  at  the  time  of  the  sale,  then  if  by  the  contract  the  thing  sold 
is  to  be  delivered  at  once  by  the  seller,  the  case  is  not  within  the 
section.  Another  case  is  where,  although  the  thing  may  have  to 
remain  in  the  ground  some  time,  it  is  to  be  delivered  by  the 
seller  finally,  and  the  purcliaser  is  to  have  nothing  to  do  with  it 
until  it  is  severed,  and  that  case  also  is  not  within  the  section. 
Then  there  comes  the  class  of  cases  where  the  purchaser  is  to  take 
the  thing  away  himself.  In  such  a  case,  where  the  things  are 
fruetus  mdustriales,  then,  although  they  are  still  to  derive  bene- 
fit from  the  land  after  the  sale  in  order  to  become  fit  for  delivery, 
nevertheless  it  is  merely  a  sale  of  goods,  and  not  within  the 
section.  If  they  are  not  fruetus  industriales,  then  the  question 
seems  to  be  whether  it  can  be  gathered  from  the  contract  that 
they  are  intended  to  remain  in  the  land  for  the  advantage  of  the 
purchaser,  and  are  to  derive  benefit  from  so  remaining  ;  then 
part  of  the  subject-matter  of  the  contract  is  the  interest  in  land, 
and  the  case  is  within  the  section.  But  if  the  thing,  not  being 
fruetus  industriales,  is  to  be  delivered  immediately,  whether  the 
seller  is  to  deliver  it  or  the  buyer  is  to  enter  and  take  it  himself, 
then  the  buyer  is  to  derive  no  benefit  from  the  land,  and  conse- 
quently the  contract  is  not  for  an  interest  in  the  land,  but  relates 
solely  to  the  thing  sold  itself."  And  accordingly,  applying  the 
test  last  mentioned,  the  contract  being  for  timber  trees,  and  the 
purchaser  being  bound  to  take  them  immediately,  in  Marshall  v. 
Green  the  contract  was  held  to  be  not  within  the  fourth  section 
of  the  statute.2 

^  Wms.  Saund.  p.  395.      The  note  is  now  settled  that,  with  respect  to  emble- 

as  follows  :  "  The  principle  of  these  deci-  nients   or  fruetus  industriales,    etc.,    the 

sions  appears  to  be  this,  that  wherever  at  corn  and  other  growth  of  the  earth  which 

the  time  of  the  contract  it  is  contemplated  are  produced  not  spontaneously,  but  by 

that  the  purchaser  should  derive  a  benefit  labor  and  industry,  a  contract  for  the  sale 

from  the  further  growth  of  the  thing  sold  of  them  while  growing,  whether  they  are 

from  further  vegetation  and  from  the  nu-  in   a   state  of  maturity  or  whether  they 

triment  to  be  afforded  by  the  land,  the  have  still  to  derive  nutriment  from  the 

contract  is  to  be  considered  as  for  an  in-  land  in  order  to  bring  them  to  that  state, 

terest  in  land  ;  but  where  the  process  of  is  not  a  contract  for  tlie  sale  of  any  in- 

vegetation  is  over,  or  the  parties  agree  that  terest  in  land,  but  merely  for  the  sale  of 

the  thing  sold  shall  be  immediately  with-  goods." 

drawn  from  the  land,  the  land  is  to  be  ^  j^  Liford's  Case,  11  Co.   50,  it  was 

considered   as   a   mere   warehouse   of  the  adjudged  that  if  tenant  in  tail  sell  timber 

thing  sold,  and  the  contract  is  for  goods,  trees  to  another,  now  they  are  a  chattel  in 

This  doctrine  has  been  materially  qualified  the  vendee,  and  his  executors  shall  have 

by  later  decisions,  and  it  appears  to  be  them,  and  in  such  case  fictione  juris  they 


240 


COMMENTARIES   ON   SALES. 


[book   IV. 


But  though,  as  we  have  seen,  growing  crops,  particularly  those 
that  avcfructus  industriales,  are  generally *to  be  considered  goods, 
wares  and  merchandise,  and  come  within  the  seventeenth  section 
of  the  Statute  of  Frauds,  yet  they  are  not,  absolutely,  for  all  pur- 
poses, considered  goods  or  chattels.  Thus,  though  as  between 
the  executor  and  heir,  and  the  executor  and  the  remainder-man, 
they  are  personal  property,  and  may  be  taken  as  such  in  execution 
and  under  a  distress,  they  would  pass  by  a  conveyance  of  the  land, 
as  part  of  the  land,  without  express  words,  and,  therefore,  for  that 
purpose,  they  are  realty,  and  not  goods  and  chattels.^ 


are  severed  from  the  laud  ;  but  if  teuant 
in  tail  die  before  actual  severance,  as  to 
the  issue  in  tail  they  are  parcel  of  his  in- 
heritance, and  shall  go  with  it,  and  the 
vendee  can't  take  them,  and  j'et  quoad 
the  tenant  in  tail  himself,  they  were  sev- 
ered for  a  time.  Senible,  that  where  the 
tenant  in  fee  simple  sells  timber  trees  to 
another,  they  are,  at  common  law,  as  to 
all  parties,  even  before  the  severance,  chat- 
tels, ;ind  go  to  the  executor  of  the  vendee. 
Whilst  timber  is  standing,  it  constitutes 
a  part  of  the  realty.  When  wrongfully 
severed  from  the  soil,  its  character  as  to 
ownership  is  not  changed.  It  continues 
as  pi-eviously  the  property  of  the  owner  of 
the  land,  and  can  be  pursued  by  him 
wherever  it  is  carried.  All  the  remedies 
are  open  to  the  owner  which  the  law  af- 
fords in  other  cases  of  the  wrongful  re- 
moval or  conversion  of  personal  property. 
Schulenberg  v.  Harrinian,  21  Wall.  44. 
In  a  New  Brunswick  case,  Kerr  v.  Cou- 
nell,  Berton's  R.,  by  Dr.  Stockton,  233, 
it  was  held  that  a  license  to  cut  and 
remove  a  certain  quantity  of  timber  from 
lands  described  in  the  license,  does  not 
convey  an  interest  in  lands  within  the 
statute  of  frauds,  or  give  any  property  in 
standing  trees. 

In  Webber  v.  Lee,  9  Q.  B.  Div.  315,  it 
was  decided  that  a  grant  of  a  right  to 
shoot  over  land,  and  to  take  away  a  part 
of  the  game  killed,  is  a  grant  of  an  interest 
in  laud,  and  within  the  4th  section  of  the 
statute.  But  no  interest  in  land  passes 
on  a  contract  to  board  and  lodse.  Wright 
V.  Stewart,  2  E.  &  E.  721.  Nor,  for  the 
use  of  a  dock  with  a  vessel,  where  there  is 
no  exclusive  possession  of  the  dock  granted, 
but  the  rights  of  property  and  possession, 
subject  to  the  temporary  occupation  by  the 
vessel,  remain  in  the  owners  of  the  dock. 
Wells  V.  Kingston-upon-HuU,  L.  R.  10 
C.  P.  402.  See  Smith  v.  Overseers  of  St. 
Michael,  3  E.  &  E.  383  ;  Dean  v.  Hog;:, 
10  Bing.  345  ;  Watkins  v.  Overseers,  L. 
R.  3  Q.  B.  350  ;  Roads  v.  Trumpington, 
L.  R.  6  Q.  B.  56  ;  Wood  v.  Leadbitter, 
13  M.  &  W.  833.     And  an  agreement  to 


take  shares  in  a  mine  conducted  on  the 
cost-book  principle,  which  gives  the  share- 
holder an  interest  in  a  proportionate  part 
of  the  profits  of  the  undertaking,  confers 
no  interest  in  the  land,  though  the  em- 
ployment and  use  of  the  land  are  essential 
to  the  making  of  the  profits.  So  in  Tay- 
ler  V.  Waters,  7  Taunt.  374,  the  case  of  a 
box  at  the  opera,  the  court  held  that  the 
grant  was  but  a  right  of  admission  to  the 
opera  house,  and  a  license  to  enjoy  an 
amusement  on  land,  and  not  a  grant  of  an 
interest  in  land. 

^  Per  Brett,  J.,  in  Brantoni  v.  Griffits, 
1  C.  P.  Div.  349  ;  at  p.  354.  And  as  the 
English  Bills  of  Sale  Act,  1854  (17  and 
18  Vic.  c.  36),  defines  "  personal  chattels" 
under  that  act,  with  reference  to  which 
the  bills  of  sale  must  be  registered,  to 
mean  "goods,  furniture,  fixtures,  and 
other  articles  capable  of  complete  transfer 
by  delivery,"  and  enacts  that  the  personal 
chattels  shall  be  deemed  to  be  in  the  ap- 
parent possession  of  the  person  giving  the 
bill  of  sale  so  long  as  they  remain  on  land 
or  other  premises  occupied  by  him,  or  as 
they  shall  be  used  and  enjoyed  by  him 
in  any  place  whatsoever,  notwithstanding 
that  formal  possession  may  have  been  taken 
by  or  given  to  any  other  person  ;  it  was 
held  that  these  words  as  to  pereonal  en- 
joyment, taken  together  with  the  expres- 
sion, "capable  of  complete  transfer  by 
deliver}^"  show  that  the  act  only  applies 
to  things  which,  at  the  moment  when  the 
bill  of  sale  is  given  and  the  provisions  of 
the  act  are  to  be  applied  to  it,  might  be 
delivered  to  the  assignee,  and  are  not,  but 
are  left  in  the  enjoyment  of  the  assignor  ; 
and  that  it  follows  that,  as  growing  crops 
are  not  capable  of  being  used  or  enjoyed, 
or  of  being  delivered  at  the  time  when  the 
provisions  of  the  act  are  said  to  apply  to 
them,  they  are  not  personal  chattels  within 
its  meaning.  Brantom  v.  Griffits,  1  C.  P. 
Div.  349.  Affirmed,  on  appeal,  2  C.  P. 
Div.  212.  An  Irish  case  to  the  contrary, 
Sheridan  v.  McCartney,  11  Ir.  C.  L. 
N.  s.  506,  which  was  doubted  in  Gough  v. 
Everard,  2  H.  &  C.  1,  was  disapproved  by 


PART   I.]        WHAT   ARE   WITHIN   THE   STATUTE   OF   FRAUDS. 


241 


Brett,  J.,  in  Brantom  v.  GrifSts,  1  C.  P.  Div. 
at  p.  355.  But  it  was  held,  iu  Ex  parte 
National  Bank,  16  Ch.  Div.  104,  affirming 
Brantom  v.  Griliits,  that  though  a  bill  of 
sale  under  the  Bills  of  Sale  Act,  1854,  does 
not  require  registration  in  respect  of  grow- 
ing crops,  yet  when  the  crops  are  subse- 


quently severed  by  the  grantor,  they  be- 
come personal  chattels,  and,  if  possession 
has  not  been  taken  of  them  by  the  grantee 
before  the  commencement  of  proceedings 
in  bankruptcy  against  the  grantor,  they 
will  pass  to  the  trustee  in  liquidation. 


lb 


242 


COMMENTARIES   ON   SALES. 


[book  IV. 


BOOK    IV. 
PART   II. 
FIXTURES. 


The  cases  with  reference  to  fixtures  in  connection  with  the 
Statute  of  Frauds  are  not  numerous.  In  Jevons  v.  Roberts,^  Lit- 
tledale,  J.,  considered  tenant's  fixtures  as  being  in  close  resem- 
blance to  those  growing  crops  which  are  not  the  spontaneous 
produce  of  the  earth,  but  are  raised  by  the  labor  and  expense  of 
the  occupier  of  the  land.^    ' 


1  5  B.  &  C.  834. 

2  The  position  of  Littledale,  J.,  in  ef- 
fect, is,  that  that  which  goes  to  the  exec- 
utor, whether  growing  crops  or  fixtures, 
is  within  the  17th  section  of  the  statute  ; 
while  that  which  go»s  to  the  heir  is  with- 
in the  4th  section.  His  language  is  :  "I 
think  that  a  sale  of  any  growing  produce 
of  the  earth,  reared  by  labor  and  expense, 
in  actual  existence  at  the  time  of  the  con- 
tract, whether  it  be  in  a  state  of  maturity 
or  not,  is  not  to  be  considered  a  sale  of  an 
interest  in  or  concerning  land  within  the 
4th  section  of  the  statute  of  frauds  ;  but 
a  contract  for  the  sale  of  goods,  wares,  and 
merchandise,  within  the  17th  section  of 
that  statute.  Such  an  interest  goes  to  the 
executor,  and  not  to  the  heir,  and  any- 
thing which  goes  to  the  executor  and  not 
to  the  heir,  may  be  taken  in  execution 
under  a  fi.  fa.  This  is  the  rule  of  law  as  to 
tenants'  fixtures,  which  bear  a  very  close 
resemblance  to  those  growing  crops  which 
are  not  the  spontaneous  produce  of  the 
earth,  but  are  raised  by  the  labor  and  ex- 
pense of  the  occupier  of  the  land.  It  has 
been  held  that  vats,  coppers,  etc.,  set  up 
in  a  house  by  a  lessee  for  years  in  relation 
to  his  trade,  may  be  taken  in  execution 
under  a  writ  of  fieri  facias  issued  against 
him,  Poole's  Case,  1  Salk.  368  ;  but  that 
fixtures  of  a  similar  description  cannot  be 
taken  in  execution  under  a  fie7-i  facias  is- 
sued against  a  party  who  was  seized  in  fee 
of  the  house  in  which  thej'  were  situate, 
upon  the  ground  that  they  would  go  to  his 
heir,  and  not  to  his  executor.  Winn  v. 
Ingilby,  5  B.  &  Aid.  625.  Now,  a  growing 
crop  of  corn  or  potatoes,  or  of  any  vegetable 


which  is  produced  not  spontaneously  by 
the  earth,  but  by  the  labor  and  expense  of 
the  occupier,  goes  to  the  executor  and  not 
to  the  heir  of  tenant  in  fee  simple.  It 
would  seem,  therefore,  that  such  a  grow- 
ing crop  may  be  seized  under  &  fieri  facias 
issued  against  the  owner  of  the  inheritance, 
as  his  goods  and  chattels,  even  while  they 
are  annexed  to  the  freehold.  I  cannot, 
therefore,  consider  the  annual  produce  of 
land  which  is  proceeding  to  a  stiite  of  ma- 
turity, and  which,  when  taken  at  matur- 
ity, will  be  severed  from  the  ground  and- 
become  movable  goods  and  chattels,  as  an 
interest  in  or  concerning  land  within  the 
meaning  of  the  4th  section  of  the  statute 
of  frauds,  which  seems  to  me  to  mean  land 
taken  as  mere  land,  and  not  its  annual 
growing  productions." 

As  the  question  as  to  what  are  fixtures, 
is  also  important  under  Bills  of  Sale  Acts, 
and  otherwise,  we  here  set  out  the  author- 
ities relating  thereto,  at  some  length. 

In  Ex  parte  Astbury,  In  re  Richards, 
L.  R.  4  Ch.  Ap.  630,  an  iron  manufac- 
turer made  an  equitable  mortgage  of  his 
rolling-mills,  of  which  he  held  a  lease,  and 
shortly  afterwards  became  bankrupt.  Be- 
sides the  fixed  Juachinery,  the  mills  con- 
tained the  following  chattels  used  in  the 
manufacture  :  1  A  large  number  of  du- 
plicate iron  rolls  of  various  sizes  made  to 
be  fitted  into  the  machine  and  used  for 
diff'erent  .sizes  of  iron.  Some  of  these 
were  fitted  to  the  machine  and  had  been 
used,  and  others  had  not  yet  been  fitted. 
2.  Straightening  plates,  which  were  broad 
iron  plates  embedded  in  the  floor,  for 
straightening   the  iron  when   taken   out 


PART    II.] 


FIXTURES. 


243 


Assumpsit  was  brought  for  goods  sold  and  delivered,  and  the 
question  was  whether  the  plaintiff  could  recover  under  such  a 


of  the  furnace.  3.  Weighing  machines, 
which  were  deposited  in  holes  dug  in  the 
earth,  and  lined  with  brick-work,  so  that 
the  weighing  plate  was  level  with  the  sur- 
face of  the  ground,  but  which  were  not 
fixed  to  the  brick  work.  It  was  held,  on 
a  case  stated  in  bankruptcy  between  the 
mortgagees  and  the  bankrupts'  assignees  : 
First.  That  such  of  the  rolls  as  had  been 
fitted  to  the  machine  were  fixtures,  and 
passed  to  the  mortgagees  ;  but  that  such 
of  the  rolls  as  had  not  been  fitted  to  it, 
were  not  fixtures,  and  belonged  to  the  as- 
signees. Secmtdly.  That  the  straighten- 
ing plates  were  fixtures,  and  passed  to  the 
mortgagees.  Thirdly.  That  the  weigh- 
ing machines  were  not  fixtures,  and  be- 
longed to  the  assignees. 

As  the  case  covers  different  points  of- 
ten occurring,  with  reference  to  the  law  of 
fixtures,  we  ijuote  fully  from  the  judgment 
in  the  case  delivered  by  Sir  G.  M.  Gifford, 
L.  J.,  as  follows  :  — 

"  The  questions  in  cases  of  this  descrip- 
tion are,  for  the  most  part,  much  more 
questions  of  fact  than  of  law,  for  to  my 
mind  the  law  has  been  settled,  but  the 
facts  necessarily  differ  more  or  less  in  each 
particular  case. 

"  With  respect  to  the  law,  it  is  ad- 
mitted that  where  there  is  a  mortgage  of 
a  manufactory,  and  part  of  the  machinery 
used  in  it  is  a  fixture,  that  part  passes. 
We  have,  therefore,  to  determine  what, 
according  to  the  law,  are,  in  a  proper 
sense,  fixtures.  There  are  two  dicta  which 
will  be  sufiicient  to  guide  us  for  the  pres- 
ent purpose.  In  Mather  v.  Fraser,  it  was 
decided  that  the  article  must  be  an  essen- 
tial part  of  the  machine.  1  think  that 
was  all  that  it  was  necessary  to  lay  down 
in  that  case.  The  dictum  of  Lord  Cot- 
tenham  in  Fisher  v.  Dixon  (12  CI.  &  F. 
312),  was  that  all  'belonging  to  the  ma- 
chine '  would  pass,  and  1  should  say  in 
tliis  case  the  proper  test  to  lay  down  would 
be  that  the  chattel  must  be  '  something  that 
belongs  to  the  machine  as  part  of  it.' 
Now,  these  machines  were  rolling  ma- 
chines, and  there  appears  to  be  connected 
with  rolling  machines,  parts  which  be- 
yond all  doubts  are  not  fixed,  in  the  strict 
sense  of  the  term  ;  but  it  is  in  evidence 
that  if  a  machine  is  ordered,  it  is  sent 
with  one  set  of  rolls,  and  it  is  quite  mani- 
fest that  without  rolls  the  machine  could 
not  do  any  part  of  the  work  for  which  it 
is  made.  One  set  of  rolls  clearly  passes. 
But  we  have  here  dui)licate  rolls  ;  and  with 
reference  to  them,  —  I  am  not  now  speak- 
ing of  rolls  which  can  be  considered  as,  in 
any  sense,   unfinished,   but  of  duplicate 


rolls  which  have  been  actually  fitted  to  the 
machine,  —  I  cannot  see  why,  if  one  set  of 
rolls  passes,  the  duj)licate  rolls  should  not 
pass  also.  It  comes,  in  fact,  to  this,  that 
the  machine  with  one  set  of  rolls  is  a  per- 
fect machine,  but  the  machine  with  a  du- 
plicate set  is  a  more  perfect  machine.  I 
think,  therefore,  that  each  set  of  rolls 
necessarily  belongs  to  the  machine  as  part 
of  it.  I  do  not  think  that  this  is  at  all 
affected  by  the  didum  of  Fitzhcrbert  ;  but 
if  it  was,  my  answer  would  be,  that  this 
subject  has  been  considered  much  more  of 
late  years  than  it  was  in  olden  times,  and 
that  the  matter  decided  was  with  regard  to 
a  question  of  distress.  If  it  were  desired 
"to  reduce  the  question  to  an  absurdity,  it 
would  be  by  supposing  a  case  of  duplicate 
latch-keys  to  a  door,  and  holding  that  one 
only  should  pass,  and  not  the  other.  The 
fact  is,  that  whether  there  is  one  set  of 
rolls  or  a  duplicate  set,  they  are  each  part 
and  parcel  of  the  machine,  and  come 
within  the  term  'belonging  to  the  ma- 
chine as  part  of  it.'  Then  comes  the  case 
as  to  the  different  sizes  of  rolls.  But  if 
the  duplicates  of  the  same  size  pass,  it  fol- 
lows that  the  rolls  of  different  sizes  pass,  if 
they  render  the  machine  still  more  perfect 
than  if  the  rolls  were  all  of  the  same  size. 
"  Then  we  come  to  another  and  differ- 
ent class  of  rolls,  and  there  I  confess  I  dif- 
fer from  the  registrar  who  has  given  his 
opinion  in  this  case.  I  allude  to  those 
rolls  which  had  been  made  for  the  purpose 
of  being  used  in  this  machine  ;  and  had 
been  sent  to  the  mill  for  that  purpose, 
but  had  never  been  fitted  to  the  machine, 
and  which  required  something  more  to  be 
done  to  fit  them  to  the  machine  in  order 
that  they  might  be  used  in  it.  I  think 
that  if  a  man  mortgages  a  machine,  and 
afterwards,  the  machine  itself  being  per- 
fect, and  fitted  with  rolls,  and  everything 
else  connected  with  it,  other  rolls  are  sent 
for  to  be  used  with  the  machine,  but  those 
rolls  cannot  be  used  unless  and  until  they 
are  fitted  to  the  machine,  it  would  be 
going  a  long  way  to  say  that  the  mort- 
gagor should  be  compelled  to  fit  those  rolls 
to  the  machine,  and  should  be  j.recluded 
from  saying  that  they  do  not  form  a  part 
of  the  machine.  Therefore,  I  am  of  the 
opinion  that,  as  regards  tlie  duplicate  rolls, 
as  regards  the  rolls  of  dili'erent  sizes,  as 
regard  all  the  rolls  which  have  been  actu- 
ally fitted  to  the  machine,  tiiey  belong  to 
the  machine  as  part  of  the  machine  —  they 
are,  in  fact,  essential  ])arts  of  the  machine. 
But  I  cannot  hold  that  the  rolls  which 
have  never  been  fitted  to  the  machine,  and 
have  never  been  used  in  the  machine,  and 


^ 


244 


COMMENTARIES   ON    SALES. 


[book    IV. 


count  the  value  of  grates  and  other  fixtures  which  the  plaintiff 
had  fixed  to  a  house  in  which  he  carried  on  business,  to  which 

which  require  something  more  to  be  done 
to  them  before  they  are  fitted  to  the  ma- 
chine, belong  to  the  machine,  or  that  they 
are  essential  parts  of  it.  Therefore,  in  that 
respect,  the  order  will  be  varied.  The  two 
points  which  remain  to  be  disposed  of  in 
this  question  are,  first,  as  to  the  straight- 
ening plates  ;  and  secondly,  as  to  the 
weigliing  machines.  I  cannot  agree  to  the 
suggestion  of  Mr.  Jessel  that  because  the 
mortgagor  in  this  case  was  a  leaseholder, 
and  not  a  freeholder,  the  articles  which 
are  fixtures  will  not  pass  to  the  mortgagee. 
Whether  he  is  a  freeholder  or  a  lease- 
holder, the  same  rule  clearly  and  indubi- 
ably  would  apply,  and  the  only  question 
is,  whether  the  straightening  plates  and' 
the  weighing  machines  are  fixtures.  With 
regard  to  the  straightening  plates,  two 
cases  were  cited,  one  of  the  Metropolitan 
Counties  Society  v.  Brown,  and  another  of 
Bales  V.  Duke  of  Beaufort.  The  latter 
case  clearly  has  no  application,  for  that 
was  a  case  in  which,  there  being  chattels 
which,  as  between  the  lessor  and  lessee, 
the  lessee  might  remove,  an  execution 
creditor  of  the  lessee  was  held  entitled  to 
take  them.  As  regards  the  former  case, 
the  point  was  wholly  different  from  the 
point  in  this  case,  because  there  the 
straightening  plates  certainly  were  not 
fixeii  in  the  mode  in  which  these  straigiit- 
ening  plates  appear  from  the  evidence  to 
be  fixed.  It  is  only  necessary  to  read 
some  portions  of  the  evidence  to  show  that 
these  straightening  plates  are  clearly  fix- 
tures, and,  in  fact,  just  as  much  part  of 
the  floor  as  any  pavement  would  be  ;  and, 
certainly,  it  would  be  astonishing  to  me 
if  an  ordinary  pavement  were  regarded  as 
a  tiling  that  could  be  removed  by  a  mort- 
gagor as  against  his  mortgagee.  (His 
Lordship  then  referred  to  the  evidence, 
and  continued  : )  Upon  this  evidence,  I 
must  assume  that  the  plates  round  the 
straiglitening  plates  are  part  of  the  ordi- 
nary floor  of  the  place,  and  that  tlie 
straightening  plates  are  just  as  nmch  part 
of  the  ordinary  floor  as  the  plates  around 
them.  I  look  upon  these  straightening 
])lates  as  in  the  same  position  as  a  flag- 
stone laid  down  and  set  in,  and  certainly 
if  anything  in  the  world  is  a  fixture,  I 
should  conceive  that  a  flagstone  laid  down 
and  set  in  would  be  a  fixture.  In  fact,  the 
registrar  seems  to  have  fallen  into  this 
mistake  by  laying  rather  too  much  stress 
on  what  was  said  in  the  case  of  Mather  v. 
Fraser  (2  K.  &  .1.  536),  as  to  nothing  being 
a  fixture  which  could  stand  by  its  own 
weight.  No  doubt  a  flat  plate  will  rest 
by  its  own  weight,  but  if  you  have  it  laid 


in,  embedded,  and  overlaid  with  that 
which  is  part  of  the  permanent  floor,  and 
the  permanent  floor  cannot  be  removed 
without  damage  to  the  freehold,  as  it 
clearly  cannot  be  here,  I  can  have  no 
doubt  whatever  but  that  the  straightening 
plates  are  fixtures. 

"  But  then,  with  regard  to  the  weigh- 
ing machines,  I  think  the  case  is  wholly 
different.  The  evidence  is  clear  that  weigh- 
ing machines  of  this  description  are  fre- 
quently put  upon  wheels,  and  are  so  used. 
As  regards  these  weighing  machines,  it 
appears  that  where  they  are  placed  inside 
the  building,  the  floor  is  prepared  for  them, 
and  where  they  are  placed  outside,  the  soil 
is  prepared  for  them  ;  that  is  to  say,  a 
square  receptacle  is  make  and  bricked,  the 
weighing  machine  is  placed  in  it,  and  may, 
of  course,  be  taken  out  again,  for  it  is  not 
fixed  by  nails  or  by  screws,  or  in  any  other 
way.  One  of  the  witnesses  says  :  '  I  took 
a  piece  of  thin  iron  about  half  an  inch 
thick  and  trickled  around  the  outside  of  it, 
ami  from  that  I  could  see  there  was  some 
brick-work  put  up  in  order  to  secure  the 
outside  ;  there  was  a  space  all  round  of 
from  five-eighths  to  tiiree-fourths  of  an 
inch.'  ^Ir.  Fry  argued  that  the  brick- 
work was  the  same  thing  as  if  there  had 
been  a  fraVne,  and  that  the  brick-work  is 
part  and  parcel  of  the  machine.  To  that 
argument  I  cannot  assent.  Suppose  in 
this  case  a  number  of  brick  places  had  been 
made,  into  which  it  had  been  convenient 
to  put  weiglits,  beyond  all  doubt  the 
weights  would  not  have  been  fixtures.  In 
the  same  way,  if  there  had  been  a  founda- 
tion of  granite  for  a  cannon  or  a  large  tel- 
escope, neither  the  cannon  nor  the  large 
telescope  would  be  a  fixture.  The  prei^a- 
ration  of  the  soil  does  not  make  the  ma- 
chine a  fixture,  nor  does  the  fact  of  its 
being  put  into  the  receptacle  so  ])repared 
for  it  make  it  a  fixture."  And  see  >letro- 
politan  Counties'  Society  v.  Brown,  '2C 
Beav.  454  ;  Wystow's  Case,  M.,  14  H.  3, 
fo.  25  ])1.,  6  ;  Place  v.  Fagg,  1  M.  &  Ry. 
277  ;  Fisher  v.  Dixon,  12  CI.  &  F.  312  ; 
Slather  v.  Fraser,  2  K.  &  J.  536  ;  Jolins- 
ton  V.  Dobie,  7  Mos.  Diet,  of  Deo.  (Se.) 
5443  ;  D'Evncourt  v.  Gregory,  L.  R.  3  Eq. 
382;  Bates  y.  Duke  of  Beaufort,  8  Jur.  N.  s. 
270  ;  Hellawell  v.  Eastwood,  6  Ex.  295. 

W.,  a  lessee  for  years,  demise<l  by  way 
of  mortgage  a  cotton  mill  and  all  the 
steam-engines,  mill  gear,  and  fixed  and 
movable  machinery,  to  B.,  to  hohl,  as  to 
the  mill  and  such  of  the  machinery  as  was 
of  the  nature  of  fixtures,  for  tlie  residue  of 
the  term  except  the  last  two  days,  and  as 
to  the  movable  machinery  and  other  arti- 


PART   II.] 


FIXTURES. 


245 


the  defendant  had  succeeded,  and  for  which  fixtures  the  defend- 
ant was  to  pay.     Lord  EUenborough  held,  that  being  fixed  to  the 


cles,  absolutely.  The  deed  contained  a 
power  of  sale,  by  the  mortgagee,  of  the 
mill  and  machinery,  and  as  to  the  machin- 
ery, fixed  and  movable,  either  with  the  mill 
or  separately.  It  was  held  that  tlie  deed, 
so  fur  as  it  operated  as  a  mortgage  of  trade 
fixtures,  required  registration  under  the 
Bills  of  Sale  Act  ;  and  that  the  fact  of  the 
building  and  the  trade  fixtures  being  in- 
cluded in  the  same  demise,  made  no  differ- 
ence. Ex  -parte  Daglish.  In  re  AVilde, 
L.  R.  8  Ch.  Ap.  1072.  The  holding  in 
this  case  turns  on  the  language  of  the  Eng- 
lish Bills  of  Sale  Act  (17  &  18  Vic.  ch.  36), 
which  jjrovides  in  §  7,  that  the  expression, 
"bill  of  sale,"  shall  include  bills  of  .sale, 
assigimients,  transfers,  declarations  of  trust 
without  transfer,  and  other  assurances  of 
personal  chattels,  and  also  powers  of  attor- 
ney, authorities,  or  licenses  to  take  posses- 
sion of  personal  chattels  as  security  for 
any  debt ;  and  it  expressly  y)rovides  that 
the  expression,  "personal  chattels,"  shall 
include  fixtures.  See  also,  Begbie  v.  Fen- 
wick,  L.  R.  8  Ch.  Ap.  1075,  «.;  Hawtry 
V.  Butlin,  L.  E.  8  Q.  B.  290  ;  Boyd  v. 
Sherrock,  L.  R.  5  E(j.  72  (considered  in- 
fra);  Cliniie  v.  Wood,  L.  R.  4  Ex.  328  ; 
Longbotham  v.  Berry,  L.  R.  5  Q.  B.  123  ; 
Holland  V.  Hodgson,  L.  R.  7  C.  P.  328  ; 
Ex  ■parte  Barclay,  5  DeG.  il.  &  G.  403  ; 
Waterfall  v.  Penistone,  6  E.  &  B.  876  ; 
Cullwick  0.  Swindell,  L.  R.  3  Eq.  249. 

In  D'Eyncourt  v.  Gregory,  L.  R.  3  E(). 
382,  the  question  arose  as  to  what  were 
fixtures  under  a  will  w"here  there  was  a  be- 
quest, on  a  condition  not  being  fulfilled,  of 
all  the  tapestry,  marbles,  statues,  and  ]iic- 
tures,  with  their  frames  and  glasses,  which 
at  the  time  of  his  death,  should  be  in  or 
about  a  mansion  house,  which  the  testator 
had  erected,  fitted  up,  and  furnished. 
Lord  Rom  illy  coiifessed  that  he  felt  very 
considerable  difhculty  in  deciding  as  to 
which  of  the  aiticles  whi(;h  were  more  or 
less  closely  attached  to  tlie  house  were, 
and  which  were  not,  removable.  The 
principle  upon  which  he  decided  was,  that 
in  all  these  cases  the  <)uestioti  is  not 
whether  the  thing  itself  is  easily  remov- 
able, but  whether  it  is  essentially  a  part 
of  the  building  itself  from  which  it  is  pro- 
posed to  remove  it  ;  as  in  the  familiar  in- 
stance of  the  grinding-stone  of  a  flour  mill, 
whi(,'h  is  easily  removable,  but  which  is, 
nevertheless,  a  jiart  of  the  mill  itself,  and 
goes  to  the  heir,  and  not  to  the  legal  per- 
sonal rej>resentative.  It  was,  therefore, 
held  that  tapestry,  pictures  in  panels, 
frames  filled  with  satin,  and  attached  to 
the  walls,  and  also  statues,  figures,  vases, 
and  stone    garden-seats,    purchased    and 


placed  by  the  testator,  which  were  essen- 
tially part  of  the  house,  or  of  the  architec- 
tural design  of  the  building  or  grounds, 
however  fastened,  were  fixtures,  and  could 
not  be  removed.  But  that  glasses  and 
pictures  not  in  panels,  not  being  part  of 
the  building,  though  attached  to  it  by 
nails  and  screws,  passed  under  the  testa- 
tor's will,  as  did  also  other  chattels  of  the 
testator,  including  tapestry,  which  another 
than  the  legatee  had  attached  to  the  build- 
ing after  the  death  of  the  testator.  The 
great  difficulty  was  found  with  reference 
to  the  articles  of  ornament  which  were  not 
attached  to  the  freehold  by  any  fastenings  ; 
but  these,  though  articles  of  ornament, 
were  considered  as  belonging  to  an  archi- 
tectural design,  and  fo|-ming  part  of  the 
design  itself,  and,  like  the  .stone  of  a  mill, 
whicli  is  part  of  the  mill  itself,  go  to  the 
heir-at-law.  It  was  admitted  that  the 
distinction  was  extremely  thin  as  between 
articles  of  ornament  which  did  or  did  not 
form  jiart  of  the  architectural  design,  and 
that  in  many  cases  it  would  be  difficult  to 
distinguish  between  them  unless  it  were 
done  in  an  arbitrary  manner  ;  so  closely 
might  one  run  into  the  other.  But  the 
court  was  unable  to  suggest  any  other 
mode  by  which  the  true  construction 
could  be  defined  more  accurately  than  that 
stated.  Accordingly,  evidence  must  in 
every  case  determine  whether  the  article 
falls  within  or  without  the  line.  See 
Lawton  v.  Lawton,  3  Atk.  13,  Lord  Dud- 
ley V.  Lord  Warde,  Anib.  113  ;  Squier  v. 
Slaver,  2  Freem.  249  ;  Harvevr.  Harvey, 
2  Str.  1141  ;  Cave  v.  Cave,  2  A'ern.  508  ; 
Hutchinson  v.  Kay,  23  Beav.  413  :  Horn 
V.  Baker,  9  East,  215  ;  Elliott  r.  Bishop, 
10  Ex.  496  ;  Bishop  i;.  Elliott,  11  Ex.  113; 
Wiltshear  v.  Cottrell,  1  Yj.  k  B.  674 ; 
Wood  V.  Hewitt,  15  L.  J.  Q.  B.  247  ; 
Mant  V.  Collins,  cited  Ibid.  ;  Patton  v. 
Sheppard,  10  Sim.  186. 

It  has  been  held  that  looms  ])ut  up  by 
the  lessee  of  a  cotton  mill  for  Ins  conve- 
nience during  the  existence  of  his  term,  and 
fa.stened  to  the  floor  by  nails  driven 
through  the  loom  feet  into  wooden  ]>lugs 
fitted  into  the  floor,  are,  though  easily 
movable  without  injury  to  the  freehold, 
fixtures  whicli  will  pass  under  an  assign- 
ment of  "  the  mill,  fixed  machinery,  and 
hereditaments,  with  all  looms  and  other 
machinery,  fixed-  or  movable,"  without 
the  necessity  of  registering  the  assignment 
as  an  assignment  of  chattels  under  the 
Bills  of  Sale  Art,  17  &  18  Vic.  c.  36. 
Boyd  I'.  Slierrotk,  L.  R.  5  Eq.  72. 

Following  the  derisions  in  Ex  parte 
Barclay,    5    De    G.    M.    &    G.    403,    and 


246 


COMMENTARIES   ON   SALES. 


[book   IV. 


freehold,  and  not  a  separate  and  undivided  chattel,  they  could  not 


Mather  v.  Fraser,  2  K.  &  J.  536,  the  prin- 
ciple oil  which  this  case  seems  to  have 
heen  decided,  is  that,  if  the  tenant  has 
aihxed  to  the  freehold  articles,  in  such  a 
manner  as  to  make  it  appear  that,  during 
tlie  term,  they  are  not  to  be  removed,  and 
that  he  regards  them  as  attached  to  the 
property,  according  to  his  interest  in  the 
]»roperty,  then,  on  any  dealing  hy  him 
with  the  property  to  which  these  articles 
are  affixed,  the  court  would  presume  that 
he  meant  to  deal  with  the  property  as  it 
stood,  with  all  these  things  so  attached, 
and  to  pass  the  property  in  its  then  condi- 
tion. Such  a  principle  is,  obviously,  veiy 
UDsatisfactoiy  ;  leaving,  as  it  does,  the 
same  articles,  affixed  in  precisely  the  same 
manner,  to  be  considered  as  fixtures  pa.ss- 
ing  with  the  freehold,  or  not,  according 
to  a  rule  almost  incapable  of  any  reason- 
able application.  The  attempted  applica- 
tion in  the  judgment  in  this  case,  of  the 
j)rinciple  named  (see  p.  79),  is  so  thor- 
oughl}'  unsatisfactory  as  to  demonstrate 
the  utter  impracticability  of  the  principle 
relied  on.  The  decision  has  not  met  with 
approval,  even  on  the  main  point  it  de- 
cides. It  was  dissented  from  bv  Malins, 
V.  C,  in  Begbie  v.  Fen  wick,  L."R.  8  Ch. 
1075,  71.  ;  also  in  substance,  by  Blackburn 
and  Mellor,  JJ.,  in  Hawtry  v.  Biitliu,  L. 
R.  8  Q.  B.  290  ;  and  again  expressly,  by 
Mellish,  L.  J.,  in  Ex  parte  Daglish,  L.  R. 
8  Ch.  at  p.  1083.  See  further,  Haley  v. 
Hammersley,  3  De  G.  F.  &  J.  587,  and 
the  cases  cited  in  the  above  notes. 

A  tramway  in  a  quarry,  and  a  steam 
crane,  cramped  on  to  large  stones,  and 
kept  in  position  by  two  guys,  were  held  to 
he,  with  the  guys  as  well,  fixtures  passing 
under  a  mortgage  which  did  not  require 
to  be  registered  as  a  sale  of  personal  chat- 
tels under  the  English  Bills  of  Sale  Act, 
either  of  1854  or  1878.  Ex  parte  Moore 
&  Robinson's  Banking  Company,  In  re 
Armytage,  14  Ch.  D.  379.  The  4th  sec- 
tion of  the  Act  of  1878  enacts  that  the 
expression,  "  bills  of  sale,"  shall  include 
bills  of  sale,  assignments,  and  a  great 
variety  of  other  instruments  there  men- 
tioned ;  and  shall  not  include  certain 
other  instruments.  The  paragraph  which 
defines  personal  chattels  is  as  follows  : 
"  The  expression,  '  personal  chattels,'  shall 
mean  goods,  furniture,  and  other  articles 
capable  of  complete  transfer  by  delivery, 
and  (when  separately  assigned  or  charged) 
fixtures,  but  shall  not  include  chattel  in- 
terests in  real  estate,  nor  fixtures  (except 
trade  machinery  as  hereinafter  defined), 
when  assigned  together  with  a  freehold  or 
leasehold  interest  in  any  land  or  building 
to  which  they  are  affixed."     See  further, 


as  to  the  construction  of  these  acts,  Mather 
V.  Fraser,  2  K.  &  J.  536  ;  J^onghottom  v. 
Berry,  L.  R.  5  Q.  B.  123  ;  Holland  v. 
Hodgson,  L.  E.  7  C.  P.  328  :  Turner  v. 
Cameron,  L.  R.  5  Q.  B.  306;  Begbie 
V.  Fenwick,  L.  R.  8  Ch.  1075,  n. ;  Water- 
fall V.  Fenistone,  6  E.  &  B.  876  ;  Ex  parte 
Barclay,  L.  R.  9  Ch.  576  ;  Ex  parte  Dag- 
lish, L.  R.  8  Ch.  1072  ;  Duke  of  Beaufort 
V.  Bates,  31  L.  J.  Ch.  481  ;  Turner  v. 
Cameron,  L.  R.  5  Q.  B.  306  ;  Ex  parte 
Astburv,  L.  R.  4  Ch.  630  ;  £x  parte 
Tweed}-,  5  Ch.  Div.  559. 

The  owner  in  fee  in  possession  of  land 
and  premises  deposited  the  title-deeds 
with  a  banking  company  as  an  equitable 
mortgage,  to  secure  the  balance  of  his  ac- 
count with  them  for  the  time  being.  He 
then  erected  a  mill,  and  set  up,  not  only 
steam  power  applicable  to  all  mills,  but 
machinery  applicable  only  to  the  purposes 
of  a  particular  manufacture  which  he  car- 
ried on  there.  He  afterwards  made  a  bill 
of  sale  of  all  the  machinery,  the  assignee 
having  notice  of  the  previous  deposit  of 
the  deeds.  Held,  as  between  the  mortga- 
gees and  assignee,  that  all  of  the  machin- 
ery which  was  annexed  to  the  floor,  ceil- 
ings, or  sides  of  the  building,  in  a 
"quasi  permanent  manner,"  by  means  of 
bolts  and  screws,  passed  to  the  mortga- 
gees ;  and  that  it  made  no  difference  that 
the  object  of  the  annexation  was  merely 
to  steady  the  machines  when  in  use,  and 
that  they  could  be  removed  without  any 
injury  to  them  or  the  freehold,  nor  that 
the  machines  were  in  the  nature  of  trade 
fixtures,  which  would,  as  between  landlord 
and  tenant,  belong  to  the  tenant.  Long- 
bottom  V.  Berry,  L.  R.  5  Q.  B.  123. 

The  case  of  Boyd  v.  Shorrock,  L.  R.  5 
Eq.  72  (supra),  was  disapproved  in  Haw- 
try .  V.  Butlin,  L.  R.  8  Q.  B.  290  ;  which 
the  court  in  this  case  refused  to  follow. 
The  facts  in  Hawtry  i'.  Butlin,  were  that 
H.,  a  lessee  for  yeans,  demised,  by  inden- 
ture of  mortgage  to  the  plaintiffs,  certain 
buildings  used  as  an  iron  factory,  for  the 
residue  of  the  term,  except  the  last  two 
days,  and  by  the  same  indenture,  he  also 
assigned  to  the  plaintiffs  all  the  m.achin- 
ery,  plant,  fixtures,  implements,  utensils, 
and  effects,  then  or  theieafter  to  be  fixed 
to  or  used  in  or  about  the  buildings,  sub- 
ject to  redemption  on  payment  of  the  mort- 
gage money  and  interest.  This  mortgage 
was  not  registered  under  the  Bills  of  Sale 
Act.  The  fixed  machinery,  plant,  and 
fixtures  assigned,  were  such  artii'les  as  are 
known  as  trade  fixtures.  While  in  the 
apparent  possession  of  H.,  they  were  seized 
by  the  sheriff  under  Afi.  fa.,  at  the  suit  of 
the  defendants.     The    plaintiffs    claimed 


PART   II.] 


FIXTURES. 


247 


come  under  the  description  of  goods  sold  and  delivered.^     So,  in 


the  articles  under  their  mortgage,  and  the 
question  between  them  and  the  defendants 
was  brought  before  the  Court  of  Queen's 
Bench  on  a  special  case  stated.  The  court 
held  that  the  assignment  was  of  personal 
chattels  within  the  Bills  of  Sale  Act,  and 
required  registration.  The  distinction 
made  in  the  case  is  as  between  a  convey- 
ance by  vendor  and  vendee,  or  mortgagor 
and  mortgagee  in  fee,  where  the  fixtures 
wouhl  pass  with  the  land  ;  and  an  under- 
lease by  a  tenant,  where  the  trade  fixtures 
would  not  pass  with  the  land.  In  the 
former  case,  registration  under  the  Bills 
of  Sale  Act  would  not  be  required  ;  in  the 
latter,  it  would  be.  Begbie  v.  Fenwick, 
L.  J.  N.  s.  58,  was  followed. 

In  Holland  v.  Hodgson,  L.  R.  7  C.  P. 
328,  334,  where  the  mortgage  was  in  fee 
with  the  fixtures  attached,  the  court  said  : 
"  If  a  tenant  having  only  a  limited  interest 
in  the  land,  and  an  absolute  interest  in  the 
fixtures,  were  to  convey  not  only  his  limited 
interest  in  the  land,  and  his  right  to  enjoy 
the  fixtures  during  the  term,  so  long  as  they 
continued  a  part  of  the  land,  but  also  his 
power  to  sever  those  fixtures  and  dispose 
of  them  absolutely,  a  very  different  ques- 
tion would  have  to  be  considered.  As  it 
does  not  arise,  we  decide  nothing  as  to 
this.  We  are  not  to  be  understood  as  ex- 
pressing dissent  from  what  appears  to  have 
been  the  opinion  of  Wood,  V.  C.,  in  Boyd  v. 
Shorrock,  L.  R.  5  Eq.  72,  but  merely  guard- 
ing against  being  supposed  to  confirm  it." 
'in  Climie  v.  Wood,  L.  R.  3  Ex.  257, 
on  the  trial  before  Pigott,  B.,  the  jury,  in 
reference  to  an  engine  and  boiler,  on  ques- 
tions submitted  to  them,  found  that  the 
articles  were  trade  fixtures,  and  were  fixed 
for  the  better  use  of  them,  and  not  to  im- 
prove the  inheritance  ;  that  they  were  re- 
movable without  any  appreciable  damage 
to  the  freehold,  and  that  they  had  been 
sold  bond  fide.  In  an  action  between  the 
purchaser  (the  plaintiflf),  and  the  mortga- 
gee (the  defendant),  the  jury  found  for  the 
plaintiff.  On  motion  to  enter  the  verdict 
for  the  defendant,  the  Court  of  Exchequer 
held,  following  Cullwick  v.  Swindell,  L. 
R.  3  Eq.  249,  that  trade  fixtures  which 
have  been  annexed  to  the  freehold  for  the 
more  convenient  using  of  them,  and  not 
to  improve  the  inlieritance,  and  which  are 
capable  of  being  removed  without  any  ap- 
preciable damage  to  the  freehold,  pass  un- 
der a  mortgage  of  the  freehold  to  the 
mortgagee.     This   decision,   on  appeal  to 

1  Nutt  V.  Butler,  5  Esp.  176.  And  .see 
Elwes  V.  Maw,  3  East,  38  ;  Cave  v.  Cave, 
2  Vern.  508 ;  Lawton  v.  Lawton,  3  Atk. 
13  ;  Beck  v.  Rebow,  1  P.  Wms.  94 ;  Dean 


the  Exchecfuer  Chamber,  was  affirmed. 
Climie  v.  Wood,  L.  R.  4  Ex.  328.  See 
Hellawell  v.  Eastwood,  6  Ex.  295  ; 
Walmsley  v.  Milne,  7  C.  B.  n.  s.  115  ; 
Waterfall  v.  Penistone,  6  E.  &  B.  876  ;  Reg. 
V.  Inhabitants  of  Lee,  L.  R.  1  Q.  B.  253  ; 
Lancaster  v.  Eve,  5  C.  B.  n.  s.  717  ;  Par- 
sons V.  Hurd,  14  W.  Rep.  860;  Place  v. 
Fagg,  4  M.  &  R.  277  ;  Ex  parte  Cotton,  2 
M.  D.  &  De  G.  725  ;  Sumner  v.  Brom- 
ilow,  34  L.  J.  Q.  B.  130  ;  Trappesw.  Bar- 
ter, 3-  C.  &  M.  153  ;  Wood  v.  Hewett,  8 
Q.  B.  913  ;  Mant  v.  Collins,  cited  8  Q.  B. 
916;  Lawton  v.  Lawton,  3  Atk.  13;  Ex 
parte  Quincey,  1  Atk.  477  ;  Lawton  v. 
Salmon,  1  H.  Bl.  259,  n.  ;  Dudley  v. 
Warde,  Amb.  113  ;  Ex  imrte  Barclay,  5 
De  G.  M.  &  G.  403  ;  Ex  'parte  Belcher.  2 
Mont.  &  A.  160. 

A  wheel  factory,  including  the  machin- 
ery and  gear,  was  mortgaged  to  the  plain- 
tiffs. The  deed  of  mortgage  was  not 
registered  as  a  bill  of  sale.  Leather  driv- 
ing-belts were  used  in  working  the  machin- 
ery at  the  factory.  They  were  used  for 
driving  certain  wheels  or  drums,  by  pas- 
sing over  the  wheels  or  drums  on  different 
shafts,  and  could  be  removed  at  pleasure 
when  the  machinery  was  thrown  out  of 
gear.  They  were  held  to  be  necessary 
parts  of  the  machinery,  and  passed  (revers- 
ing the  judgment  of  Field,  J.)  under  the 
mortgage  as  not  being  chattels  under  the 
Bills  of  Sale  Acts.  Sheffield,  &c.  Perma- 
nent Building  Society  v.  Harrison,  15  Q. 
B.  Div.  358.  In  this  case,  Longbottom  v. 
Berry,  L.  R.  5  Q.  B.  123,  was  approved 
and  followed.  Holland  v.  Hodgson,  L.  R. 
7  Q.  B.  328,  stated  infra,  is  to  the  same 
effect. 

Where  a  mortgagor  in  possession  of 
premises  lets  them  to  a  tenant  who  brings 
on  to  them  trade  fixtures,  the  fixtures  do 
not  pass  under  the  mortgage,  but  remain 
the  property  of  the  tenant.  Sanders  v. 
Davis,  15  Q.  B.  Div.  218.  The  question  in 
this  case  was  considered  one  of  first  in- 
stance. The  ground  upon  which  the  case 
rests,  is,  that  the  mortgagee  allowed  the 
mortgagor  to  remain  in  possession,  and  to 
let  the  premises.  If  the  mortgagee  had 
let  the  premises  himself,  he  could  not 
have  taken  the  fixtures.  There  is  no  rea- 
son why  he  should  be  in  a  better  position, 
because,  although  he  did  not  himself  let 
the  premises,  he  allowed  the  mortgagor  to 
do  so.  It  is  equitable  that,  under  these 
circumstances,  the  tenant  should  be  in  the 

V.  Allalley,  3  Esp.  11  ;  Pentou  v.  Robart, 
2  East.  88.  And  see  Horn  v.  Baker,  9 
East,  21 5,  as  to  reputed  ownership  under 
21  Jac.  1. 


248 


COMMENTARIES   ON   SALES. 


[book  IV. 


Lee  V.  Risdon.i  it  was  also  held  that  the  price  of  fixtures  to  a 


same  position  as  If  the  mortgagee  was  his 
landlord.  See  Cullwick  v.  Swindell,  L.  R. 
3  Eq.  249  ;  Manx  v.  Jacobs,  L.  R.  7  H.  L. 
481  ;  In  re  Cotton,  2  M.  D.  &  De  G.  725. 
As  a  general  rale,  the  mortgage  of  prem- 
ises will  pass  the  fixtures  upon  the  prem- 
ises. A  mortgage  of  a  lease  made  by  the 
lessee  will  carry  the  fixtures  of  the  prop- 
erty which  is  in  lease,  and  the  power  to 
remove  which  fixtures  was  in  the  tenant. 
Fixtures  attached  by  the  mortgagor  to  the 
property  after  the  date  of  the  mortgage, 
will  also,  unless  under  special  stipulations, 
pass  to  the  mortgagee.  There  is  no  differ- 
ence in  this  respect  between  a  mortgage 
in  fee  by  a  freeholder,  and  a  mortgage  by 
way  of  assignment  of  a  term  by  a  lease- 
holder. A.  was  the  lessee  of  a  public 
house.  On  obtaining,  in  1869,  from  M.  a 
loan  of  £800,  he  deposited  the  lease  with 
M.,  together  with  a  memorandum  recit- 
ing that  it  was  deposited  as  security  for 
the  loan,  and  for  any  money  that  might 
become  due  to  M.  for  goods  sold,  and  for 
the  expense  of  ' '  insuring  the  premises  and 
the  fixtures  and  fittings  therein  "  from  tire, 
and  the  memorandum  also  contained  an 
undertaking  to  execute,  when  required, 
a  legal  mortgage.  In  April,  1873,  A.  bor- 
rowed a  sum  of  £55  from  J .,  and  gave  J. 
a  bill  of  sale  of  the  fixtures  and  fittings. 
J.  afterwards  put  a  man  in  possession  and 
advertised  the  fittings  for  sale.  M.  there- 
upon filed  a  bill  to  restrain  the  sale.  It 
was  held  that  the  equitable  mortgage  ef- 
fected in  1869  passed  the  fixtures  and  fit- 
tings, and  did  not  require  registration 
under  the  Bills  of  Sale  Act  (17  &  18  Vic. 
c.  36)  to  give  it  effect  as  to  them.  Meux 
V.  Jacobs,  L.  R.  7  H.  L.  481.  In  Long- 
bottom  V.  Berry,  L.  R.  5  Q.  B.  123,  the 
owner  in  fee  in  possession  of  land  and 
premises,  deposited  the  title-deeds  with  a 
banking  company,  as  an  equitable  mort- 
gage, to  secure  the  balance  of  his  account 
with  them  for  the  time  being.  He  then 
erected  a  mill,  and  set  up  not  only  steam 
power  applicable  to  all  mills,  but  machin- 
ery applicable  only  to  the  purposes  of  a 
particular  manufacture  which  he  carried  on 
there.  He  afterwards  made  a  bill  of  sale 
of  all  the  machinery,  the  assignee  having 
notice  of  the  previous  deposit  of  the  deeds. 
It  was  held  that,  as  between  the  mortgagees 
and  assignee,  all  of  the  machinery  which 
was  annexed  to  the  floor,  ceilings,  or  sides 
of  the  building,  in  a,  "  quasi  permanent 
manner,"  by  means  of  bolts  and  screws, 
passed  to  the  mortgagees  ;  and  that  it 
made  no  difference  that  the  object  of  the  an- 
nexation was  merely  to  steady  the  machines 


when  in  use,  and  that  they  could  be  re- 
moved without  any  injury  to  them  or  the 
freehold,  nor  that  the  machines  were  in 
the  nature  of  trade  fixtures,  which  would, 
as  between  landlord  and  tenant,  belong  to 
the  tenant.  Mather  v.  Fraser,  1  Kay  &  J. 
536,  is  to  the  same  effect,  as  is,  also.  Ex 
parte  Barclay,  5  De  G.  M.  &  G.  403. 
These  cases  were  followed  in  Holland  v. 
Hodgson,  L.  R.  7  C  P.  328.  There  the 
owner  in  fee  of  a  woi-sted  mill,  at  which 
he  carried  on  the  business  of  a  worsted 
spinner  and  stuff  manufacturer,  mortgaged 
it  to  the  plaintiffs.  By  a  deed  of  arrange- 
ment, under  the  Bankruptcy  Act,  1861, 
subsequently  executed,  the  mortgagor  as- 
signed all  his  property  to  the  defendants, 
as  trustees,  for  the  benefit  of  his  creditors. 
Under  the  latter  deed,  the  defendants 
seized  certain  looms  which  were  in  the  mill 
that  was  mortgaged.  These  looms  were 
attached  to  the  stone  floors  of  the  mill  by 
means  of  nails  driven  through  holes  in  the 
feet  of  the  looms  ;  in  some  cases  into  beams 
which  had  been  built  into  the  stone,  and 
in  other  cases  into  plugs  of  wood  driven 
into  holes  drilled  in  the  stone  for  the  pur- 
pose. It  was  necessary  that  the  looms 
should  be  so  attached  for  the  purpose  of 
steadying  them  and  keeping  them  in  a 
true  direction,  perpendicular  to  the  line  of 
the  shafting,  by  means  of  which  the  steam 
power  was  applied  to  them.  It  was  im- 
possible to  remove  the  looms  without 
drawing  the  nails  ;  but  this  could  be  done 
easily  and  without  any  serious  damage  to 
the  flooring.  The  plaintiffs  brought  trover 
for  the  looms.  It  was  held,  affirming  the 
decision  of  the  court  below,  that  the  looms 
passed  by  the  mortgage  of  the  mill  as  part 
of  the  realty,  and  the  action  was  therefore 
maintainable.  And  see  Wilde  v.  Waters, 
16  C.  B.  637  ;  Wiltshear  v.  Cotterill,  1 
E.  &  B.  674  ;  Walmsley  v.  Milne,  7  C.  B. 
N.  s.  115  ;  In  re  Dawson,  Ir.  L.  R.  2  Eq. 
222  ;  Haley  v.  Hammersley,  3  De  G.  F. 
&  J.  587  ;  Hallen  v.  Runder,  1  C.  M.  & 
R.  266  ;  Trappes  v.  Barter,  2  C.  &  M. 
153  ;  Wood  V.  Hewett,  8  Q.  B.  913  ; 
Fisher  v.  Dixon,  12  CI.  &  F.  312  ;  Gibson 
V.  Hammersmith  Rv.  Co.,  2  Dr.  &  P.  603  ; 
Martin  v.  Roe,  7  E!  &  B.  237. 

On  the  principle  that  the  law  as  to  fix- 
tures was  much  more  liberal  as  regards 
erections  for  the  purpose  of  carrying  on 
trade  than  under  any  other  circumstances, 
the  Supreme  Court  of  the  United  States, 
in  Van  Ness  v.  Pacard,  2  Peters,  137,  held 
that  buildings  erected  by  the  defendant,  a 
tenant,  on  land  in  Washington,  for  the 
purposes  of  his  business  as  a  dairyman. 


1  7  Taunt.  188. 


J 


PART   II.] 


FIXTURES. 


249 


house  cannot  be  recovered  under  a  declaration  for  goods  sold  and 


and  removed  by  him  before  the  expiration 
of  his  lease,  were  properly  removable.  The 
buildincrs  consisted  of  a  wooden  dwelling- 
house,  two  stories  high  in  front,  with  a 
shed  of  one  story  ;  a  cellar  of  stone  or 
brick  foundation,  and  a  brick  chimney  ; 
and  of  a  stable  for  cows,  of  plank  and  tim- 
ber, fixed  upon  jjosts  fastened  into  the 
ground.  The  defendant  and  his  family 
dwelt  in  the  house  from  its  erection  until 
near  the  expiration  of  the  lease,  when  he 
took  down  the  house  and  stable  and  re- 
moved the  materials  from  the  lot.  The 
defendant  was  a  carpenter  by  trade,  and 
he  gave  evidence  that,  upon  obtaining  the 
lease,  he  erected  the  house  with  a  view  to 
carry  on  the  business  of  a  dairyman,  and 
for  the  residence  of  his  family  and  servants 
engaged  in  the  business  ;  and  that  the  cel- 
lar, in  which  there  was  a  spring,  was  made 
and  exclusively  used  for  a  milk -cellar,  in 
which  the  utensils  of  his  business  were 
kept  and  scalded,  and  washed  and  used  ; 
that  feed  was  kept  in  the  upper  part  of  the 
house,  which  was  also  occupied  as  a  dwel- 
ling for  his  family  ;  and  that  the  defend- 
ant had  his  tools  as  a  carpenter,  and  two 
apprentices  in  the  house,  and  a  work-bench 
out  of  doors  ;  and  carpenters'  work  was 
done  in  the  house,  which  was  in  a  rough 
and  unfinished  state,  and  made  partly  of 
old  materials.  As  the  case  carries  the  doc- 
trine to  its  extreme  limit,  we  quote  from 
the  judgment  to  show  the  full  extent  to 
which  it  was  the  design  of  the  court  to 
carry  the  case.  The  judgment  was  deliv- 
ered by  Story,  J.  :  "It  has  been  sug- 
gested at  the  bar  that  this  exception  in 
favor  of  trade  has  never  been  applied  to 
cases  like  that  before  the  court,  where  a 
large  house  has  been  built  and  used  in  part 
as  a  family  residence.  But  the  question, 
whether  removable  or  not,  does  not  de- 
pend upon  the  form  or  size  of  the  build- 
ing, whether  it  has  a  brick  foundation  or 
not,  or  is  one  or  two  stories  high,  or  has  a 
brick  or  other  chimney.  The  sole  ques- 
tion is,  whether  it  is  designed  for  purposes 
of  trade  or  not.  A  tenant  may  erect 
a  large  as  well  as  a  small  messuage  or  a 
soap  boilery  of  one  or  two  stories  high,  and 
on  whatever  foundations  he  may  choose. 
In  Lawton  v.  Lawton  (3  Atk.  13),  Lord 
Hardwicke  said,  as  we  have  already  seen, 
that  it  made  no  difTerence  whether  the 
shed  of  the  engine  be  made  of  brick  or 
stone.  In  Penton  v.  Robart  (2  East,  88), 
the  building  had  a  brick  foundation,  let 
into  the  ground  with  a  chimney  belonging 
to  it,  upon  which  there  was  a  superstruc- 
ture of  wood.  Yet  the  court  thought  the 
building  removable.  In  Elwes  v.  Maw 
(3  East,  38),  Lord  Ellenborough  expressly 


stated  that  there  was  no  difference  be- 
tween the  building  covering  any  fixed 
engine,  utensils,  and  the  latter.  The 
only  point  is,  whether  it  is  accessor}'  to 
carrying  on  the  trade  or  not.  If  bmidfide 
intended  for  this  purpose,  it  falls  within 
the  exception  in  favor  of  trade.  The  case 
of  the  Dutch  barns  before  Lord  Kenyon 
(Dean  v.  AUalley,  3  Esp.  11;  Woodfall's 
Landlord  and  Tenant,  219)  is  to  the 
same  efi'ect.  Then,  as  to  the  residence  of 
the  family  in  the  house,  this  resolves  it- 
self into  the  same  consideration.  If  the 
house  were  built  principally  for  a  dwelling- 
house  for  the  family,  independently  of  car- 
rying on  the  trade,  then  it  would  doubt- 
less be  deemed  a  fixture,  falling  under  the 
general  rule,  and  immovable.  But  if  the 
residence  of  the  family  were  merely  an 
accessory  for  the  more  beneficial  exercise 
of  the  trade,  and  with  a  view  to  superior 
accommodation  in  this  particular,  then  it 
is  within  the  exception.  There  are  many 
trades  which  cannot  be  carried  on  well 
without  the  presence  of  many  persons  by 
night  as  well  as  bj'  day.  It  is  so  in  some 
valuable  manufactories.  It  is  not  unusual 
for  persons  employed  in  a  bakery  to  sleep 
in  the  same  building.  Now,  what  was 
the  evidence  in  the  present  case  ?  It  was, 
'  that  the  defendant  erected  the  building 
before  mentioned  with  a  view  to  carry 
on  the  business  of  a  dairyman,  and  for  the 
residence  of  his  family  and  servants  en- 
gaged in  that  business.'  The  residence  of 
the  family  was  then  auxiliary  to  the  dairy; 
it  was  for  the  accommodation  and  beneficial 
operations  of  this  trade.  Surely  it  cannot 
be  doubted  that  in  a  business  of  this  na- 
ture the  immediate  presence  of  the  family 
and  servants  was  or  might  be  of  very  great 
utility  and  importance.  The  defendant 
was  also  a  carpenter,  and  carried  on  his 
business  as  such  in  the  same  building.  It 
is  no  objection  that  he  carried  on  two 
trades  instead  of  one.  There  is  not  the 
slightest  evidence  of  this  one  being  a  mere 
cover  or  evasion  to  conceal  another,  which 
was  the  principal  design  ;  and  unless  we 
were  prepared  to  say,  which  we  are  not, 
that  the  mere  fact  that  the  house  was  used 
for  a  dwelling-house  as  well  as  for  a  trade, 
superseded  the  exception  in  favor  of  the 
latter,  there  is  no  gi-ound  to  declare  that 
the  tenant  was  not  entitled  to  remove  it. 
At  most,  it  would  be  deemed  only  a  mixed 
case,  analogous  in  princifile  to  those  before 
Lord  Chief  Baron  Comyns  and  Lord  Hard- 
wicke, and, therefore,  entitled  to  the  benefit 
of  the  exception.  The  case  of  Holmes  v. 
Tremper  (20  .Fohns.  29)  proceeds  upon  |)rin- 
ciples  equally  liberal  ;  and  it  is  quite  cer- 
tain that  the  Supreme  Court  of  New  York 


250 


COMMENTARIES   ON    SALES. 


[book   IV. 


delivered.^     This  was  the  case  where  the  seller  was  the  owner  of 
the  house,  and  the  purchaser  was  the  incoming  tenant.     But  in 


were  not  prepared  at  that  time  to  adopt 
the  doctrine  of  Ehves  v.  Maw,  in  respect 
to  erections  for  agricultural  purposes." 
We  think  the  Circuit  Court  was  right  in 
refusing  the  first  instruction,  viz.,  that, 
on  the  tacts  named,  the  defendant  was  not 
justified  in  removing  the  buildings  from 
the  premises. 

The  doctrine  concerning  tenants'  fix- 
tures, which  is  a  strong  innovation  upon 
the  common-law  rule  that  all  buildings 
become  a  part  of  the  freehold  as  soon  as 
they  are  placed  upon  the  soil,  has  ex- 
tended )io  further  than  the  right  of  re- 
moval while  the  tenant  is  in  possession, 
and  has  never  been  held  to  give  a  right  of 
action  against  the  landlord  for  their  value. 
It  was  therefore  held,  that  where  the  con- 
tract in  the  lease  gave  the  landlord  the 
option  of  renewal  or  payment  for  improve- 
ments at  the  termination  of  the  lease,  this 
did  not  apply  where  the  tenant  was  ejected 
for  non-payment  of  the  rent  before  the 
lease  had  determined.  Kutter  v.  Smith, 
2  Wall.  491.  The  right  to  such  payment 
was  not  covered  by  the  contract. 

On  the  question  of  rolling  stock  as  a 
fixture,  see  the  reporter's  note  to  Minne- 
sota Co.  V.  St.  I'aul  Co.,  2  Wall.  609, 
645.  The  distinction  to  which  reference 
is  there  made  between  rolling  stock  of  a 
railway  as  a  "  fixture"  and  as  an  "acces- 
sory," is  no  finer  than  the  distinction  be- 
tween a  "sale"  and  a  "barter."  The 
language  used  as  regards  rolling  stock, 
slightly  altered,  is  equally  as  applicable 
to  many  transactions  which  might  be 
called  "barter:"  "If  they  must  not  be 
called  '  fixtures '  [sales],  in  deference  to 
the  old  cases,  they  are  yet  of  that  sort  of 
accessories  [barter]  which  has  every  ele- 
ment of  a  fixture  [sale],  and  to  be  re- 
garded accordingly,  however  named." 

Under  an  act  which  declares  that  cer- 
tain bonds  issued  by  a  railroad  company 
constitute  a  first  lien  and  mortgage  upon 
the  road  and  property  of  the  company,  it 
was  held  that  this  gave  a  lien  on  the  lands 
which  had  been  granted  to  the  railway 
company.  Wilson  v.  Boj'ce,  92  U.  S. 
320. 

The  rule  of  giving  priority  to  the  last 
creditor  for  aiding  to  conserve  the  thing, 
has  never  been  introduced  into  the  laws 
of  this  country,  except  in  maritime  cases, 
which  stand  on  a  particular  reason.  Such 
a  principle  has  no  application  to  railroads. 
With  them  the  general  principle  of  the 
common  law  applies,  that  whatever  is 
affixed  to  the  freehold  becomes,  as  a  gen- 
eral rule,  part  of  the  realty;  and  this  ap- 
plies to  rails  as  they  are  laid  on  the  road, 


of  which  they  become  a  part,  and  come 
within  the  purview  of  a  mortgage  on  the 
road  by  the  company.  Galveston  R.  R. 
Co.  V.  Cowdrey,  11  Wall.  459. 

In  Hyatt  v.  Vincennes  National  Bank, 
113  U.  S.  408,  it  was  held  that,  under  the 
statutes  of  Indiana,  the  sale,  under  an 
execution,  of  machinery,  buildings,  fix- 
tures, and  improvements,  including  an 
engine,  boiler,  hoisting  machine,  railroad 
scales,  wagon  scales,  screens,  etc.,  was 
properly  made  as  real  estate,  and  not  as 
personal  property  ;  as,  for  the  purposes  of 
a  sale  on  execution,  the  articles,  being 
chattels  real,  had,  by  the  statutes,  the 
character  of  real  estate  impressed  on  them, 
and,  therefore,  were  not  required  to  be 
sold  as  personal  property,  but  as  real 
estate. 

1  The  right  between  landlord  and  ten- 
ant does  not  altogether  depend  upon  the 
principle  that  the  articles  continue  in  the 
state  of  chattels.  Many  aiticles,  though 
originally  goods  and  chattels,  yet  when 
affixed  by  a  tenant  to  the  freehold,  cease  to 
be  goods  and  chattels  by  becoming  part  of 
the  freehold.  And  though  in  the  tenant's 
power  to  reduce  them  to  the  state  of  goods 
and  chattels  again  by  severing  them  dur- 
ing his  term,  yet  until  they  are  severed 
they  are  a  part  of  the  freehold,  as  wain- 
scots screwed  to  the  wall,  trees  in  a  nur- 
sery ground,  which  when  severed  are  chat- 
tels, but  standing,  are  part  of  the  freehold. 
And  unless  the  lessee  uses  during  the  term 
his  continuing  privilege  to  sever  them,  he 
cannot  afterwards  do  it.  And  trover  can- 
not afterwards  be  brought  ;  nor  can  felony 
be  committed  of  these  things  ;  for  if  a 
thief  se%'ers  a  copper  and  instantly  civrries 
it  off,  it  is  no  felony  at  common  law.  If, 
indeed,  he  lets  it  remain  after  it  is  severed 
any  time,  then  the  removal  of  it  becomes 
a  felony,  if  he  comes  back  and  takes  it ; 
and  so  of  a  tree  which  has  been  some 
time  severed.  Per  Gibbs,  C.  J.,  in  Lee  v. 
Risdon,  7  Taunt,  at  p.  191.  But  in  Pitt 
V.  Shew,  4  B.  &  Aid.  206,  where  the  dec- 
laration was  in  trespass  for  breaking  and 
entering  plaintiff's  dwelling-house,  and  for 
taking  divers  goods,  chattels,  and  effects, 
it  was  held  that  as  fixtures  might  be  taken 
in  execution  under  a  Jien  /ncias,  which 
contains  similar  words,  the  value  of  the 
fixtures  might  be  recovered  under  the 
terms  mentioned  in  the  declaration  of 
"goods,  chattels,  and  effects."  And  see 
Boydell  v.  Mc:\Iichael.  1  C.  M.  &  H.  177, 
179,  and  Horsfall  v.  Hey,  2  Kx.  778,  7S-i, 
showing  that  trespass  de  bonis  a,<!porta(is 
will  lie  against  a  stranger  for  removing 
fixtures. 


PART    II.] 


FIXTURES. 


251 


Hallcn  V.  Rnnder,i  A.,  having  occupied  a  house  as  tenant  to  B.,  in 
which  there  were  certain  fixtures  which  A.  had  purchased  on  en- 
tering the  house,  and  which  he  had  a  right  to  remove  during 
his  tenancy,  agreed,  at  B.'s  request,  a  few  days  before  the  expira- 
tion of  his  tenancy,  to  forbear  to  remove  the  fixtures,  B.  agreeing 
to  take  them  at  a  valuation  to  be  made  by  two  brokers.  A.,  at  the 
expiration  of  his  tenancy,  delivered  up  possession  of  the  house  to 
B.,  leaving  the  fixtures  on  the  premises.  The  court  held  that  in- 
dehitatus  assumpsit  for  fixtures  bargained  and  sold  would  lie,  and 
that  the  contract  was  not  within  the  fourth  section  of  the  statute. 
The  case  followed  May  field  v.  Wadsley,^  where  indebitatus  assump- 
sit for  crops  of  wheat,  hay,  and  corn,  was  sustained.^  In  Lee  v. 
Gaskell"^  it  was  expressly  held,  as  it  was  in  effect  held  in  Hallen 
V.  Runder,'*'  that  a  contract  for  fixtures  would  not  come  within  the 
seventeenth  section  of  the  statute.  So  that  a  sale  of  fixtures  un- 
severed  is  neither  within  the  fourth  nor  the  seventeenth  section 
of  the  statute.  In  the  case  of  the  sale  to  a  third  party  of  fixtures 
prior  to  the  severance,  therefore,  that  which  in  effect  is  sold  is  a 
license  to  the  vendee  to  enter  and  remove  for  his  own  use  and 
purpose,  the  fixtures  during  the  term.^     But,  on  principle,  and 


»  1  C.  M.  &  R.  266. 

2  3  B.  &  C.  357. 

3  See  also  Crosby  i;.Wadsworth,  6  East, 
602;  Parker  v.  Staniland,  11  East,  362; 
Poulter  V.  Killincrbeck,  1  B.  &  P.  397. 

*  1  Q.  B.  Div.  700;  24  W.  R.  824. 

5  1  0.  M.  &  R.  266. 

®  Yet,  while  this  is  true,  as  it  is,  for 
instance,  where  there  is  a  present  sale  of 
fructus  industr idles,  to  be  subsequently 
severed  and  removed  by  the  vendee,  which 
conveys,  not  an  interest  in  the  land,  but 
merely  implies  a  license  to  go  on  the  prem- 
ises and  cut  and  remove  the  growing  crop; 
yet  there  may  be,  by  virtue  of  the  sale,  an 
immediate  property  vested  in  the  vendee, 
so  that  any  loss  of  the  subject  might  fall 
on  him.  thus,  in  Thompson  v.  Pettitt,  10 
Q.  B.  101,  by  agreement,  reciting,  as  the 
fact  was,  that  plaintiff  had  discounted  a 
bill  for  S.,  and  that  S.,  in  consideration 
thereof,  had  deposited  with  plaintiff  as 
collateral  security  for  repayment  the  lease 
of  his  house,  and  had  also  assigned  to 
him  the  fixtures  as  per  inventory,  S.  un- 
dertook, if  the  bill  should  be  dishonored, 
to  execute  a  mortgage  to  plaintiff  of  the 
lease  (such  mortgage  to  contain  the  usual 
power  of  immediate  sale),  together  with 
the  fixtures  as  per  inventory,  such  lease 
and  fixtures  to  be  sold  by  auction  or  oth- 
erwise, and  after  repaynu^nt  of  debt  and 
expenses  to  plaintiff  the  balance  to  he.  paid 
over  to  S.  But  if  plaintiff  should  wish  to 
sell  the  fixtures  by  auction  or  otherwise, 


S.  undertook  to  allow  him  to  do  so  on  the 
premises,  without  his  being  liable  to  an 
action  of  trespass.  S.  also  undertook  to 
pay  all  arrears  of  rent  and  taxes  within 
three  months  ;  and  in  default  of  such  pay- 
ment authorized  plaintiff  to  sell  the  lease 
and  fixtures  on  the  premises  bj'  auction 
or  otherwise,  without  previous  mortgage, 
and  to  pay  the  proceeds  as  before  stated. 
S.  signed  a  receipt  for  £80  as  paid  for 
purchase  of  the  fixtures.  S.  became  bank- 
rupt, having  continued  in  possession  of  the 
house  and  fixtures  until  that  event,  and 
the  bill  having  then  three  weeks  to  run. 
The  assignees  took  possession  of  the  fix- 
tures and  sold  them.  The  court  held  that 
the  effect  of  the  document  was  to  pass  an 
immediate  interest  in  the  fixtures,  the 
clause  empowering  the  mortgagee  to  enter 
on  the  premises  for  the  purpose  of  selling 
the  fixtures  without  being  liable  to  an  ac- 
tion of  trespass  plainly  contemplating  the 
property  in  the  fixtures  passing  to  S., 
while  the  legal  interest  in  the  house  still 
remained  in  the  bankrupt  ;  aiul  that  the 
assignees  were  liable  in  trespass  to  S.  for 
the  value  of  the  fixtures.  In  Niblet  v. 
Smith,  4  T.  11.  504,  where  the  action  was 
reydevin  for  taking  goods  and  chaltrls,  to 
wit,  a  lime-kiln,  with  an  avowry  for  rent, 
the  plea  in  bar  that  the  lime-kiln  was 
affixed  to  the  freehold  was  held  to  be  a 
departure,  for  that  the  declaration  tieating 
the  lime-kiln  as  a  chattel  might  have  been 
true,  because  lime  might  be   burnt  in  a 


252 


COMMENTARIES   ON   SALES. 


[book   IV. 


analogy,  a  sale  of  fixtures  prior  to  severance,  to  he  removed  hy  the 
vendor  and  delivered  to  the  vendee  as  chattels,  would  be  similar 
to  the  sale  of  an  unfinished  chattel,  to  be  subsequently  completed, 
and  delivered  by  the  vendor  to  the  vendee  after  completion,  and 
we  should  say  would  come  equally  within  the  seventeenth  section 
of  the  statute,  and  would,  also,  be  in  close  analogy  to  the  case  of 
the  sale  of  the  entire  produce  of  land,  to  be  subsequently  severed 
by  the  vendor  and  delivered  by  him  to  the  vendee  as  chattels, 
which,  as  we  have  seen,i  is  clearly  within  the  seventeenth  section 
of  the  statute.^ 


portable  oven,  and  the  kiln  need  not, 
therefore,  necessarily  be  affixed  to  the 
freehold ;  but  that,  as  the  plea  in  bar 
stated  it  to  be  affixed  to  the  freehold,  it 
was  inconsistent  with  the  declaration. 

In  Minshall  v.  Lloyd,  2  M.  &  W.  450, 
459,  Parke,  B.,  says  :  "  The  law  is  clearly 
settled  by  the  cases  of  Lee  v.  Risdon,  7 
Taunt.  191,  and  Hallen  v.  Runder,  1  C. 
M.  &  R.  266,  that  everything  substan- 
tially and  permanently  affixed  to  the  soil 
is  a  fixture.  The  principle  of  law  is  that 
quicquid  solo  plantatur  solo  cedit.  The 
right  of  a  tenant  is  only  to  remove  during 
his  term  the  fixtures  he  may  have  put  up, 
and  so  to  make  them  cease  to  be  any  longer 
fixtures.  That  right  of  the  tenant  ena- 
bles the  sheriff  to  take  them  under  a  writ 
for  the  benefit  of  the  tenant's  creditors. 
I  assent  to  the  doctrine  of  Coombes  v. 
Beaumont,  5  B.  &  Ad.  72,  and  Boydell  v. 
McMichael,  1  C.  M.  &  R.  177,  that  such 
fixtures  are  not  goods  and  chattels  within 
the  bankrupt  law,  though  they  are  goods 
and  chattels  when  made  such  by  the  ten- 
ant's severance  or  for  the  benefit  of  execu- 
tion creditors."  This  is  the  established 
law  from  the  very  earliest  times.  See  the 
authorities  cited  in  Poole's  Case,  1  Salk. 
368.  And  see  Mackintosh  v.  Trotter,  3 
M.  &  W.  184  ;  Tripp  v.  Arraitage,  4  AL  & 
W.  687;  Dumerrpie  v.  Rumsey,  2  H.  &  C. 
777;  Barrett  v.  Lucas,  5  Jr.  R.  C.  L.  140. 

^  Siqira,  p.  224  et  seq. 

2  Lee  V.  Gaskell,  24  W.  R.  824;  1  Q.  B. 
Div.  700,  was  an  action  for  the  price  of 
gas-fittings.  At  the  trial  before  Brett,  J., 
it  appeared  that  two  persons  named  Scott 
and  Wilson  had  been  joint-tenants  of  the 
defendant  of  a  house  under  a  lease,  of 
which  seven  years  remained  to  run.  By 
an  arrangement  between  Scott  and  Wilson 
all  the  fixtures  in  the  house  became  the 
property  of  Seott.  He  became  bankrupt, 
and  his  trustee  took  possession  of  his 
effects,  among  which  were  the  gas-fittings 
(the  price  of  which  was  the  subject  of  tlie 
action)  fixed  for  use  in  the  house  in  the 


ordinaiy  way.  The  trustee  sold  them  to 
the  plaintiff,  and  informed  him  that,  as  he 
meant  to  disclaim  the  lease,  they  must  be 
removed  at  once.  The  trustee  disclaimed, 
but  Wilson's  interest  in  the  lease  contin- 
ued. The  plaintiff  did  not  remove  the 
gas-fittings,  but  sold  them  for  £11  8s.  to 
the  defendant,  the  landlord,  who  never 
took  pos.sessiou  of  them,  and  repudiated 
the  sale.  The  jury  found  that  there  was 
a  parol  contract  between  the  plaintiff  and 
defendant,  and  gave  a  verdict.  The  judge, 
however,  directed  the  verdict  to  be  entered 
for  the  defendant,  on  the  ground  that  the 
sale  came  within  the  17th  section  of  the 
statute.  The  Queen's  Bench  Division, 
however,  reversed  the  decision.  Cock  burn, 
C.  J.,  in  delivering  the  judgment,  saying  : 
'*  I  think  the  case  of  Hallen  v.  Runder, 
1  C.  M.  &  R.  266,  is  directly  in  point,  and 
is  an  authority,  of  course,  binding  upon  us 
here.  But  on  principle  I  tiiiuk  Hallen  v. 
Runder  was  quite  rigiitly  decided.  Fix- 
tures afe,  as  long  as  they  are  unsevered, 
part  of  the  freehold,  and  in  disposing  of 
them  to  the  landlord  or  any  one  else  you 
cannot  treat  them  as  chattels,  because  they 
are  not  chattels.  And  in  Hallen  v.  Run- 
der it  was  quite  rightly  decided  that  you 
could  not  bring  an  action  for  the  price  of 
fixtures  as  for  goods  sold  and  delivered, 
because  they  are  not  goods.  All  you  can 
do  with  regard  to  fixtures  is  to  make  a 
bargain  and  sale  of  them  as  fixtures,  sub- 
ject to  the  right  of  the  tenant  to  remove 
them  on  the  one  hand,  and  to  the  liability 
to  lose  them  if  he  does  not  on  the  other. 
That  is  so  in  the  case  of  a  sale  to  third 
persons,  and  it  is  the  same  in  the  ca.se  of 
a  sale  to  the  landlord.  There  is  an  anal- 
ogy, but  I  think  a  remote  one,  to  grow- 
ing crops  ;  but  there  is  an  obvious  dis- 
tinction between  the  two  things,  the  latter 
being  sown  for  the  verj'  purpose,  when 
they  are  at  maturity,  of  being  removed  ; 
whereas  the  very  contrary  is  the  case  with 
regard  to  fixtures.  However,  it  is  enough 
to  say  that  Hallen  v.  Runder  is  in  point." 


PART  III.]  WORK   AND  LABOR.  253 


BOOK    IV. 

PART   III. 
WORK  AND  LABOR. 

Contracts  for  work  and  labor  are  not  within  the  seventeenth 
section  of  the  statute.  It  is  often  a  matter  of  difficulty  to  decide 
whether  the  contract  is  for  work  and  labor  or  for  goods  sold,  and 
the  cases  are  considered  as  being  involved  in  some  confusion,^  and 
the  rule  to  be  deduced  from  them  one  of  uncertainty. 

The  question  arose  in  Atkinson  v.  Bell,^  although  not  under  the 
Statute  of  Frauds.  The  action  was  assumpsit  for  goods  sold  and 
delivered,  goods  bargained  and  sold,  work  and  labor,  and  mate- 
rials found  and  provided.  The  facts  were  that  A.,  having  a  patent 
for  certain  spinning  machinery,  received  an  order  from  B.  to  have 
some  spinning  frames  made  for  him.  A.  employed  C.  to  make 
the  machines  for  B.,  and  informed  the  latter  that  he  had  so  done. 
After  the  machines  had  been  completed,  A.  ordered  them  to  be 
altered.  They  were  afterwards  completed  according  to  this  new 
order,  and  packed  up  in  boxes  for  B.,  and  C.  informed  B.  that 
they  were  ready,  but  he  refused  to  accept  them.  A  nonsuit  was 
granted  on  the  ground  that  the  action  was  not  maintainable, 
because  the  property  in  the  frames  had  never  vested  in  the  defend- 
ants. A  rule  nisi  having  been  granted,  pursuant  to  leave  reserved, 
it  was  claimed  that  as  soon  as  specific  goods  have  been  selected 
by  the  vendor,  and  accepted  by  the  vendee,  and  everything  has 
been  done  to  vest  the  property,  the  action  for  goods  bargained 
and  sold  would  lie,  but  not  till  then ;  and  that  the  action  should 
have  been  in  special  assumpsit  for  not  accepting.  And,  secondly, 
that  the  count  for  work  and  labor  would  not  lie ;  for  that  that 
count  is  applicable  to  those  cases  only  in  which  the  work  is  done 
for  the  defendant,  and  not  upon  the  plaintiff's  own  account,  in 
working  up  his  own  materials  into  machines,  which,  when  com- 
pleted and  accepted,  and  not  until  then,  could  be  the  property  of 
the  defendants.  The  court  held  that  the  action  should  have  been 
special  for  not  accepting,  and  sustained  the  nonsuit,^ 

1  See  BPTijamin  on  Sales,  §  94  d  seq.  ^  Bayley,  J.,  said  :  "  If  the  tleclaration 

2  8  B.  &  C.  277.  bad  contained  a  count  for  not  accepting 


254 


COMMENTARIES   ON   SALES. 


[book  IV. 


A  similar  question,  under  a  different  state  of  facts,  came  up  in 
Grafton  v.  Armitage.^  A.  was  employed  by  B.  to  devise  a  method 
of  curving  metal  tubing  for  the  purpose  of  manufacturing  life- 
buoys, of  which  B.  was  patentee.  It  was  held,  that  A.  might 
recover  compensation  for  the  labor  and  skill,  and  also  the  value  of 
the  materials  employed  by  him  in  the  course  of  the  work,  under 
a  count  for  work  and  labor  and  materials.  The  plaintiff  relied  on 
Clark  V.  Mumford,^  where,  in  an  action  in  indebitatus  assumpsit 
for  work,  labor,  and  materials,  it  was  held  by  Lord  Ellenborough, 
that,  under  such  a  count,  the  plaintiff  could  recover  for  attend- 
ances as  a  farrier,  and  for  medicines  administered  in  the  cure  of 
the   defendant's   horses.     In    Grafton   v.  Armitage,  Atkinson  v. 


the  machines,  the  plaintiff  might  have 
been  entitled  to  recover.  But  1  cannot 
say  that  the  property  passed  to  the  de- 
fendants, so  as  to  enable  the  plaintiff 
to  recover  on  the  counts  for  goods  bar- 
gained and  sold,  or  for  work  and  labor. 
It  is  said,  that  there  was  an  appropriation 
of  these  specific  machines  by  the  maker, 
and  that  the  property  thereby  vested  in 
the  defendants.  I  think  it  did  not  pass. 
Where  goods  are  ordered  to  be  made,  while 
they  are  in  progress  the  materials  belong 
to  the  maker.  The  property  does  not  vest 
in  the  party  who  gives  the  order,  until  the 
thing  ordered  is  completed.  And  although 
while  the  goods  are  in  progress  the  maker 
may  intend  them  for  the  person  ordering, 
still  he  may  afterwards  deliver  them  to 
another,  and  thereby  vest  the  property  in 
that  other.  Although  the  maker  may 
thereby  render  himself  liable  to  an  action 
for  so  doing,  still  a  good  title  is  given  to 
the  party  to  whom  they  are  delivered.  .  .  . 
If  in  this  case  an  execution  had  issued 
against  the  maker,  the  sheriff  might  have 
seized  the  machines.  They  were  the 
maker's  goods,  although  they  were  in- 
tended for  the  defendants,  and  he  had 
written  to  tell  them  so.  If  they  had  ex- 
pressed their  assent,  then  this  case  would 
have  been  within  Rohde  v.  Thwaites, 
6  B.  &  C.  388,  and  there  would  have  been 
a  complete  appropriation  vesting  the  prop- 
erty in  the  defendants.  But  there  was 
not  any  such  assent  to  the  appropriation 
made  by  the  maker,  and  tlierefore  no 
action  for  goods  bargained  and  sold  was 
maintainable.  Then  as  to  the  count  for 
work  and  labor,  if  you  employ  a  man  to 
build  a  house  on  your  land,  or  to  make  a 
chattel  with  your  materials,  the  party  who 
does  the  work  has  no  power  to  appropriate 
the  produce  of  his  labor  and  your  materials 
to  any  other  person.  Having  bestowed 
his  labor  at  your  request  on  your  materi- 
als, he  may  maintain  action  against  you 
for  work  and  labor.     But  if  you  employ 


another  to  work  up  his  own  materials  in 
making  a  chattel,  then  he  may  appro- 
priate the  produce  of  that  labor  and  ma- 
terials to  another  person.  No  right  to 
maintain  any  action  vests  in  him  duiing 
the  progress  of  the  work  ;  but  when  the 
chattel  has  assumed  the  character  bar- 
gained for,  and  the  employer  accepted 
it,  the  party  employed  may  maintain  an 
action  for  goods  sold  and  delivered  ;  or  if 
the  employer  refuses  to  accept,  a  special 
action  on  the  case  for  such  refusal.  But 
he  cannot  maintain  an  action  for  work 
and  labor,  because  his  labor  was  bestowed 
on  his  own  materials,  and  for  himself  and 
not  for  the  person  who  emplo}ied  him." 
Holroyd  and  Littledale,  JJ.,  delivered 
judgments  virtually  to  the  same  effect. 
The  latter  said  :  "  Goods  bargained  and 
sold  will  not  lie  unless  there  be  a  sale. 
There  could  not  be  any  sale  in  this  case, 
unless  there  was  an  assent  b}-  the  defend- 
ants to  take  the  articles.  Here  there  was 
no  assent.  The  property  must  be  changed, 
to  make  the  action  maintainable.  If  the 
property  had  been  changed,  the  maker 
could  not  have  delivered  these  machines 
to  any  one  but  the  defendants.  I  think, 
however,  he  might  have  delivered  them  to 
another,  notwithstanding  anything  that 
has  passed,  and  that  the  defendants  could 
not  have  maintained  trover  against  the 
party  to  whom  they  were  delivered.  In 
the  case  of  an  execution  or  a  bankruptcy, 
these  machines  must  have  been  treated  as 
the  goods  of  the  maker.  As  to  tlie  count 
for  work  and  labor  and  materials,  the 
labor  was  bestowed,  and  the  materials 
were  found,  for  the  purpose  of  ultimately 
effecting  a  sale,  and  if  that  purpose  wa.s 
never  completed,  the  contract  was  not 
executed,  and  then  work  and  labor  will 
not  lie.  The  work  and  labor  and  the  ma- 
terials were  for  the  benefit  of  the  machine- 
maker,  and  not  for  the  defendants." 

1  2  C.  B.  33fi. 

2  3  Camp.  37. 


PART    III.] 


WORK   AND   LABOR. 


255 


Bell  was  distinguished,  on  the  ground  that  there  the  substance  of 
the  contract  was  goods  to  be  sold  and  delivered  by  the  one  party 
to  the  other,  while  in  Grafton  v.  Armitage  there  never  was  any 
intention  to  make  any  thing  which  could  properly  become  the 
subject  of  an  action  for  goods  sold  and  delivered.  The  plaintiff 
was  applied  to,  to  point  out  the  proper  mode  of  attaining  a  given 
object,  and  the  court  held  that  he  was  as  much  entitled  to  recover 
in  respect  of  the  application  of  his  skill  and  scientific  knowledge, 
as  he  would  have  been  for  mere  manual  work  and  labor. ^ 

Atkinson  v.  Bell  ^  is  also  distinguished  in  Wilkins  v.  Bromhead.^ 
Here,  A.  employed  B.  to  build  him  a  greenhouse  for  ^50.  When 
it  was  completed,  B.  gave  A.  notice,  and  requested  him  to  remit 
the  price.  A.  remitted  the  amount,  and  desired  B.  to  keep  the 
greenhouse  till  sent  for.  Afterwards  B.  (unknown  to  A.)  depos- 
ited the  greenhouse  with  C,  telling  him  it  was  the  property  of  A., 
and  requesting  him  to  keep  it  for  A.,  which  he  agreed  to  do.  B. 
having  become  bankrupt,  his  assignees  took  possession  of  the 
greenhouse.  The  court  held,  that  the  property  in  the  greenhouse 
passed  to  A.,  there  having  been  an  appropriation  of  it  to  him  by 
B.,  and  an  assent  to  such  appropriation,  and  that  trover  for  the 
greenhouse  would  lie  against  the  assignees.'* 


^  Coltman,  J.,  in  Grafton  v.  Armitage, 
said:  "Atkinson  v.  Bell  is  clearly  dis- 
tinguishable from  the  present  case.  The 
order  there  was  for  two  spinning- frames  to 
be  made  for  the  defendants  ;  and,  though 
the  mere  undertaking  of  the  maker  to 
make  two  spinning-frames  in  pursuance  of 
that  order,  did  not  vest  in  them  the 
property  in  the  identical  frames  when 
completed,  in  the  absence  of  any  assent 
on  their  part  to  the  appropriation,  still 
the  contract  was  not  a  contract  for  work 
and  labor.  The  claim  of  a  tailor  or  a 
shoemaker  is  for  the  price  of  goods  when 
delivered,  and  not  for  the  work  and  labor 
bestowed  by  him  in  the  fabrication  of 
them.  So,  here,  if  this  had  been  a  con- 
tract by  the  ]daintiff  to  make  a  machine 
for  the  defendant,  the  p7oper  remedy 
would  have  >)een  by  an  action  for  goods 
sold  and  delivered,  or  an  action  for  not 
accepting  the  machine.  Under  those  cir- 
cumstances, Atkinson  v.  Bell  would  have 
been  an  authority.  But  here  it  appears 
that  the  pliintiff  was  merely  employed  to 
use  his  skill  in  devising  a  mode  of  carry- 
ing out  the  defendant's  invention." 

2  8  B.  C.  277. 

8  6  M.&G.  9G.3. 

*  Tindal,  C.  J.,  in  this  case,  said  : 
"There  can  be  no  doubt  but  that  a  con- 
tract for  the  making  of  a  chattel,  does  not 
of  itself  vest  the  property  in  the  chattel, 


when  completed,  in  the  person  giving 
the  order.  But  here,  the  question  turns, 
not  upon  the  original  contract  between 
the  plaintiff  and  the  bankrupt,  but  upon 
the  circumstances  which  afterwards  took 
place,  viz.,  the  payment  by  the  plaintiff, 
after  the  greenhouse  had  been  completed, 
of  the  stij)ulated  price,  tlie  appropriation 
and  setting  apart  by  the  bankrupts  of  the 
greenhouse  for  the  plaintiff,  and  his  as- 
sent to  such  appropriation.  There  w'as  an 
appropriation  on  the  one  side,  and  an  as- 
sent to  such  appropriation  on  the  other  ; 
which,  I  think,  was  quite  sulKcient  to 
pass  the  property  to  the  plaintiff.  It  may 
be,  that  the  original  contract  did  not  pass 
the  property  ;  but  the  parties  may  be  said 
to  have  entered  into  a  new  contract.  I 
cannot  conceive  wdiy,  under  the  cii'cum- 
stances  of  this  case,  the  property  in  an 
article  made  to  order  should  uot  pass  upon 
its  completion,  as  it  would  have  done  if  it 
had  been  in  existence  at  the  time  of  the 
original  contract.  The  objections  raised 
upon  this  point  were  mainly  founded  upon 
Atkinson  v.  Bell,  8  B.  &  C.  277.  I5ut,  if 
that  case  be  examined,  it  will  be  found 
not  to  apply.  The  decision  tliere  turned 
entirely  on  the  absence  of  assent  on  the 
part  of  the  purchasers  to  tlie  approjiriation 
of  the  machines  by  the  vemlor.  Looking 
at  the  facts  of  this  case,  it  seems  to  me 
that  there  is  comj'lete  evidence  of  assent 


256 


COMMENTARIES    ON   SALES. 


[book   IV. 


Indebitatus  assumpsit  was  brought  in  Clark  v.  Bulwer,i  in  the 
sum  of  X3000  "for  the  price  and  value  of  a  main  engine  and 
other  goods  sold  and  delivered.''  It  was  proved  at  the  trial,  that  the 
contract  was  to  "  build  an  engine  of  100  horse-power  for  the  sum 
of  X2500,  to  be  completed  and  fixed  by  the  middle  or  end  of  Decem- 
ber ;  and  it  appeared  that  the  different  parts  of  the  engine  were 


on  the  part  of  the  plaintiff  to  the  appro- 
priation made  by  the  vendors.  The  plain- 
tiff was  informed  by  letter  that  the  green- 
house was  finished,  and  was  requested  to 
remit  the  price.  He  did  so,  at  the  same 
time  requesting  the  vendors  to  keep  the 
greenhouse  for  him  until  he  sent  for  it. 
It  lias  been  argued,  that  the  letter  of  the 
plaintiff,  desiring  the  vendors  to  keep  the 
greenhouse  for  him,  was  written  before  the 
article  was  seen,  and  that  it  would  be  hard 
if  it  were  held  to  be  such  an  acceptance  as 
would  preclude  him  from  rejecting  the 
article  if  it  afterwards  turned  out  de- 
fective in  its  construction.  If  a  pur- 
chaser's assent  to  the  appropriation  was 
shown  to  have  been  obtained  by  misrepre- 
sentation, it  seems  to  me  it  would  prob- 
ably be  held  to  be  no  assent  at  all.  But 
that  is  not  the  case  here  ;  and  although 
the  plaintiff  thought  proper  to  assent  to 
the  appropriation  without  seeing  the  green- 
house, the  assent  was  not  the  less  complete. 
I  think,  therefore,  that  the  property  vested 
in  the  plaintiff  so  as  to  enable  him  to  main- 
tain this  action."  It  was  conceded  in  this 
case  that  the  rule  laid  down  in  Mucklow 
V.  Mangles,  1  Taunt.  318,  is  the  correct 
one,  viz.,  that  while  the  article  remains 
unfinished,  no  property  in  it  passes,  not- 
withstanding the  vendor  may  intend  it  for 
the  purchaser,  or  may  put  his  name  upon 
it,  01-  otherwise  show  an  intention  to  ap- 
propriate it,  and  that  a  payment  of  money 
on  account  makes  no  difference.  In  Rohde 
V.  Thwaites,  6  B.  &  C.  388  (the  case 
referred  to  by  Bayley,  J.,  in  Atkinson  w. 
Bell,  8  B.  &  C.  277),  where  the  assent 
was  held  sufficient  to  pass  the  property, 
the  vendee  never  saw  the  sugars,  which 
were  the  subject  of  the  sale  ;  but  having 
received  a  message  from  the  seller  that 
they  were  ready  for  him,  he  sent  word  back 
that  he  would  take  them  away  as  soon  as 
he  could  ;  and  it  was  held  to  be  such  an 
assent  that  the  property  passed.  See, 
further,  as  to  property  passing,  Goodall  v. 
Skelton,  2  H.  Bl.  316  ;  Tarling  v.  Baxter, 
6  B.  &  C.  360  ;  Bartrara  v.  Payne,  3  C. 
&  P.  175  ;  Carruthers  v.  Pavne,  5  Bing. 
270;  Woods  v.  Russell,  5  B.'&  Aid.  942  ; 
Elmore  v.  Stone,  1  Taunt.  458  ;  Rugg  v. 
Minett,  11  East,  210  ;  Howe  v.  Pahiier, 
3  B.  &  Aid.  321  ;  Ciuter  v.  Tou.ssaint,  5 
B.  &  Aid.  855.     In  Alexander  v.  Gardner, 


1   Scott,  630,   the   plaintiffs  sold  to  the 
defendants    a  quantity   of    Sligo  butter, 
which  was  to  be  shipped  for  London  in 
October.     The    butters  were  not  shipped 
until  the  6th  of  November.     On  the  10th 
the    defendants   were   informed   that   the 
butters  were  not  shipped  within  the  con- 
tract time,  and  though  the}'  at  first  demur- 
red they  subsequently  verbally  consented 
to  waive  the  objection,  and  accepted  the  in- 
voice and  the  bill  of  lading,  which  the  plain- 
tiffs indorsed  to  them.     The  invoice  speci- 
fied the  weights  and  prices  of  the  several 
firkins.     The  vessel  on  board  of  which  the 
butters   were  shipped   was   wrecked,  and 
part   of    the   butters   was   lost,    and   the 
remainder  damaged.       In  indebitatus  as- 
siimpsif.  for  goods  bargained  and  sold,  the 
jury  found  that  the  defendants  had  waived 
the  performance  of  the  condition  as  to  the 
shipment  of  the  butters  in  October.     The 
court  held  that  there  was  a  sufficient  appro- 
priation and  ascertainment  of  the  goods, 
and  assent  thereto  by  the  defendants,  to 
vest   the  property  in    them,   and    conse- 
quently that  the  action  was  maintainable. 
Elliott  V.    Pybus,  4  M.  &  Sc.  389,  is  also 
to  tlie  effect  that  a  specific  appropriation 
of    goods   assented   to   by    the    buyer   is 
sufficient  to  support  an  action  for  goods 
bargained  and  sold.     But  in  Simmons  v. 
Swift,  5  B.  &  C.  857,  where  the  owner  of 
a  stack  of   bark  entered  into  a  contract 
to  sell  it  at  a  certain  price  per  ton,  and  the 
purchaser  agreed  to  take  and  pay  for  it 
on  a  day  specified,  and  a  part  of  it  was 
afterwards  weighed  and  delivered  to  him, 
it  was  held  that  the  property  in  the  resi- 
due did    not  vest  in  the  purchaser  until 
it  had    been  weighed,  that   being   neces- 
sary in  order  to  ascertain  the  amount  to 
be  paid,  and  that,  even  if  it  had  vested, 
the  seller  could  not,  before  that  act  had 
been  done,  maintain  an  action  for  goods 
sold  and  delivered.      And   see  Slubey  v. 
Hayward,  2    H.    Bl.  504  ;    Hammond  v. 
Anderson,   1  N.  R.  69  ;  Hanson  v.  .Meyer, 
6  East,   614;   Rugg  u.    Minett,   11  East, 
216;    AVallace    v.   Breeds,    13  East,  522; 
Austen  v.  Craven,  4  Taunt.  644  ;  White 
V.  Wilks,  5  Taunt.   176  ;   Busk  v.  Davis, 
2  M.  &  S.  397  ;  Shipley  v.  Davis,  5  Taunt. 
617. 

1  11  M.  &  W.  243. 


PART    III.] 


WORK    AND   LABOR. 


257 


constructed  at  the  plaintifT's  maiiufactory,  and  sent  in  parts  at 
different  intervals  to  the  defendant's  colliery,  a  distance  of  twenty 
miles,  where  they  were  fixed  piecemeal,  and  so  made  into  an 
engine.  It  was  held  that  the  price  agreed  upon  was  not  recover- 
able as  for  goods  sold  and  delivered  ;  but  that  the  proper  form  of 
count  was,  either  in  indebitatus  assumpsit  for  work,  labor,  and 
materials,  or  for  erecting  and  constructing  an  engine.^ 


1  Parke,   B.,   in  delivering  judgment, 
said:  "  Whenever  a  simple  contiaet  is  exe- 
cuted, and  terminates  in  a  debt,  which  it  is 
the  duty  of  the  defendant  to  pay  instanter, 
it  is  no  doubt  the  subject  of  an  indebitatus 
count  ;  but  the  executed  contract  must  be 
described  properly  ;  and  the  main  question 
here  is,  whether  it  is  proper  to  describe 
this  as  a  debt  for  a  main  engine  or  goods 
sold  arid  delivered.     We  think  not  ;  the 
engine  was  not  contracted  for  to  be   de- 
livered, or  delivered,  as  an  engine,  in  its 
complete  state,  and  afterwards  affixed  to 
the  freehold.     There  was  no  sale  of  it  as 
an  entire   chattel,  and   delivery   in   that 
character ;  and  therefore  it  could  not  be 
ti'eated  as  an  engine  sold  and  delivered. 
Nor  could  the  different  parts  of  it  which 
were  used  in  the  construction,  and  from 
time  to  time  fixed  to  the  freehold,  and 
therefore   became  part  of  it,    be  deemed 
goods  sold  and  delivered,  for  there  was  no 
contract  for  the  sale  of  them  as  movable 
goods  ;  the  contract  was  in  effect  that  the 
plaintiff  was   to   select    materials,    make 
them  into  parts  of  an  engine,  carry  them 
to  a  particular  place,  and  put  them  to- 
gether, and  fix  part   to  the  soil,  and  so 
convert  them  into  a  fixed  engine  on  the 
land  itself,  so  as  to  pump  the  water  out 
of  the  mine.     The  cases  of  Cotterell  v. 
Apsey,  6  Taunt.  322,  and  Tripp  v.  Armi- 
tage,  4  M.  &  W.  693,  are  authorities  that 
materials  used,  or  intended  to  be  used,  in 
the  construction  of  a  fixed  building,  can- 
not be  deemed  goods  sold  and  delivered  ; 
and   there   is   no   difference   between  the 
erection  of  this  sort  of  fixture  and  any 
other  building.    The  proper  form  of  count 
is  in  indebitatus  assumpsit,  for  work,  labor, 
and   materials,   or  for  erecting  and   con- 
structing an  engine.     In  the  course  of  the 
argument  cases  were  suggested,  where  a 
contract    for    goods   sold    and    delivered 
might   be   blended   with   one   for    labor ; 
and   it  was   asked   whether   a   count  for 
goods  .sold  and   delivered   might   not   be 
maintained  ;    as  where  a  specific  chattel 
was  bought,  and  was  to  be  carried  to  the 
house  of  the  purchaser,  for  an  entire  sum. 
There  the  price  of  the  commodity  might 
be  considered  as  enhanced  by  the  delivery, 
and  the  debt   properly  dpscribed,   as  for 
the  price  of  goods  sold  and  delivered.     If 
VOL.    II.  17 


it  were  part  of  the  contract  that  the  chat- 
tel   purchased   should    be   afterwards  an- 
nexed to  tKe  freeliold  by  the  vendor,  and 
for  an  entire  sum,  it  might  perhaps  admit 
of  a  question  whether  that  form  of  action 
alone  would  be  proper.     This  it  is  unne- 
cessary to  decide  ;    as  also  the  question, 
whether   the  value   of  this  steam-engine 
might  have  been  recovered  in  this  form 
of  action  by  the  defendants,  if  they  had 
been  tenants  of  the  land,  and  sold  tliis  on 
quitting   as   a   removable   fixture  to   the 
landlord  or  the  incoming  tenant.      The 
objection  in  this  case  is,  that  there  was 
no  contract  of  sale  at  all,  but  one  for  work 
and  labor  on  the  defendant's  land,  and 
materials  used  in  the  course  of  that  work." 
In  Coombs  v.  Beaumont,  5  B.  &  Ad.  72, 
it  was  held  that  a  steam-engine  for  the 
purpose  of  working  a  colliery  did  not  come 
within    the    description    of   "goods   and 
chattels"  in  the  English    Bankrupt  Act. 
So,  in  Nutt  V.  Butler,  5  Esp.  176,  it  was 
held  that  fixtures  not  separated  from  the 
freehold  could  not  be  recovered  under  a 
count  for  goods  sold.     And  in  Mucklow 
V.   Mangles,   1  Taunt.    318,   it   was   held 
that   if  a  person   contracts  with  another 
for  a  chattel  which  is  not  in  existence  at 
the  time  of  the  contract,  though  he  pays 
him  the  whole  value  in  advance,  and  the 
other  proceeds  to  execute  the  order,  the 
buj'er  acquires  no  property  in  the  chattel 
till  it  is  finished  and  delivered    to  him. 
Mansfield,  J.,  said  :    "The  only  efi'ect  of 
the  payment  is,  that  the  bankrupt   was 
under  a  contract  to  finish  the  barge  ;  that 
is  quite  a  different  thing  from  a  contract 
of  sale ;  and  until  the  baige  was  finished 
we  cannot  say  that  it  was  so  far  Pocock's 
property,    that   he    could    have   taken   it 
away."      And  Heath,  J.  :    "This  is  the 
species  of  contract  which  in  the  civil  law 
is  described  by  the  term  Do  id  facias.    It 
comes  within  the  cases  which  have  been 
held  to  be  executory  contracts,  and  as  such 
not  within  the  statute   of  frauds  as  con- 
tracts for  the  sale  of  goods.     A  tradesman 
often  finishes  goods  which  lie  is  making  in 
pursuance  of  an  order  given  by  one  per- 
son,  and  sells  them  to  another.     If  the 
first  customer  has  other  goods  made  for 
him  within  the  stipulated  time,  he  has  no 
right  to  complain.     He  could  not  bring 


258  COMMENTARIES   ON   SALES.  [BOOK   IV. 

Tlie  plaintiff,  in  Clay  v.  Yates ,^  a  printer,  verbally  agreed  to 
print  for  the  defendant  500  copies  of  a  treatise,  to  which  a  dedica- 
tion was  to  be  prefixed,  at  a  certain  price  per  sheet,  including 
paper.  The  treatise  was  printed,  and  after  the  proof-sheet  of  the 
dedication  was  revised  by  the  defendant  and  returned  to  the 
plaintiff,  he,  for  the  first  time,  discovered  that  it  contained  libel- 
lous matter,  and  refused  to  complete  the  printing  of  it.  The 
defendant  would  not  pay  for  the  treatise  without  the  dedication, 
whereupon  the  action  was  brought  to  recover  for  printing  the 
treatise.  It  was  objected,  on  behalf  of  the  defendant :  Firsts  that 
this  was  a  contract  for  the  sale  of  goods  within  the  seventeenth 
section  of  the  Statute  of  Frauds,  as  extended  by  Lord  Tenterden's 
Act.  Secondly,  that  the  contract  was  an  entire  one,  viz.,  to  print 
the  treatise  and  the  dedication,  and  that  the  plaintiff,  having 
refused  to  print  the  dedication,  was  not  entitled  to  recover  in 
respect  of  the  treatise.  The  jury  found  that  the  essence  of  the 
contract  was  work  and  labor,  and  the  materials  merely  ancillary, 
and  that  the  dedication  was  libellous.  A  verdict  was  accordingly 
entered  for  the  plaintiff  (the  declaration  containing  counts  both 
for  goods  sold  and  delivered  and  work  and  labor  and  materials), 
leave  being  reserved  to  enter  a  verdict  for  the  defendant.  The 
Court  of  Exchequer  sustained  the  verdict  for  the  plaintiff,  holding 
that  the  contract  was  not  for  the  sale  of  goods  within  the  seven- 
teenth section  of  the  Statute  of  Frauds,  but  was,  properly,  a 
contract  for  work  and  labor  and  materials.  While  this  case  is 
considered  as  being  opposed  to  Atkinson  v.  Bell,^  we  think  that 
the  cases  are  quite  consistent  with  each  other. 

In  this  case  there  was,  clearly,  no  contract  for  goods  sold  and 
delivered,  and  the  language  of  Bayley,  J.,  in  Atkinson  v.  Bell, 
had  no  reference  to  a  case  such  as  this,  where  the  work  and  labor 
was  the  essence  of  the  contract,  and  the  materials  were  merely 
ancillary.  In  Atkinson  v.  Bell,  the  main  point  is  that  the  action 
should  have  been  for  not  accepting  the  goods,  and  that  the  de- 
fendant, not  having  assented  to  the  particular  goods  that  were 
made,  was  not  liable  in  an  action  for  the  specific  goods,  as  for 
goods  bargained  and  sold ;  which  action,  and  not  that  for  work 
and  labor  and  materials,  would  have  been  the  proper  form  of 
action  had  the  goods  been  accepted.  If,  in  that  case,  the  mate- 
rials had  been  provided  by  the  defendant ;  or  if,  as  in  Clay  v. 
Yates,^  the  plaintiff  had  done  the  work  and  labor  as  the  essence  of 

trover  against  the  purchaser  for  the  goods  tract,  but  not  so  where  the  subject  is  to 

so  sold.     The  painting  of  the  name  on  the  be  made." 

stern  in  this  case  makes  no  difference.     If  i  1  H.  &  N.  73. 

the  thing  be  in  existence  at  the  time  of  the  2  g  j^    &  c.  277. 

order,  the  property  of  it  passes  by  the  con-  ^  j  jj_  ,5^  j^ ^  73^ 


PART.    III.]  WORK    AND    LABOR.  259 

the  contract  on  materials  which  were  merely  ancillary,  then  the 
language  of  Bayley,  J.,  in  Atkinson  v.  Bell,^  dealing  with  an 
entirely  different  matter,  would  have  been  of  a  different  character 
from  what  it  was.  In  that  case,  he  did  refer  to  one  of  the  cases 
where  a  count  for  work  and  labor  would  lie,  viz.,  where  the  work 
was  done  on  the  defendant's  materials,  in  which  case  the  question 
as  to  the  passage  of  the  property  in  the  goods  would  not  arise. 
But,  as  it  was  not  necessary  for  him  in  that  case  to  do,  he  did  not 
refer  to  such  a  case  as  that  of  Clay  v.  Yates,^  where,  even  had 
there  been  an  acceptance  of  the  books,  a  count  for  goods  sold  and 
delivered  would  not  even  then  lie,  from  the  simple  fact,  that,  in  this 
latter  case,  the  very  essence  of  the  contract  was,  not  that  of  a  sale 
at  all,  but  a  specific  contract  for  work  and  labor ;  the  plaintiff 
agreeing  to  print  for  the  defendant,  from  the  defendant's  "  copy," 
600  copies  of  a  treatise,  at  a  certain  price  per  sheet,  including 
paper.  So,  there  is  this  radical  difference  between  the  two  cases, 
with  reference  to  which  the  language  in  them  has  to  be  considered, 
that,  had  there  been  an  acceptance  of  the  goods  in  both  cases,  in 
one  of  them,  clearly,  a  count  for  goods  bargained  and  sold  would 
not  lie ;  while,  in  the  other,  the  court  held,  and  we  think  properly 
so,  and  in  accordance  with  the  principle  of  many  other  well- 
decided  cases,  that  that  would  have  been  the  correct  form  of 
action.  The  cases  would  have  been  much  more  nearly  alike  had 
the  contract  in  Atkinson  v.  Bell  contained  any  ingredient,  such, 
for  instance,  as  a  specified  rate  of  wages,  or  anything  of  that 
nature,  from  which  a  contract  for  work  and  labor  might  be  de- 
duced. But,  as  it  is,  it  is- nothing  more  or  less  than  the  ordinary 
case  of  an  order  for  goods  to  be  manufactured,  for  which,  on 
completion  and  acceptance,  the  ordinary  form  of  action  is  for 
goods  bargained  and  sold,  or  goods  sold  and  delivered.  In  Clay 
V.  Yates  ^  there  is,  also,  not  only  the  fact  that  the  contract  was 
for  a  fixed  price,  proportioned  to  the  amount  of  work  and  labor  to 
be  done ;  and  that,  in  respect  to  that  work  and  labor,  the  paper 
furnished  was  merely  ancillary  ;  but  that,  it  was  also  ancillary  in 
another  respect,  as  the  essential  material  for  the  work  was  fur- 
nished by  the  defendant  himself  in  the  "  copy "  from  wliich  the 
sheets  were  to  be  printed,  and  that  the  result  was  a  subject-matter 
in  which  the  printer  had  at  most  but  a  special  property,  and  not 
such  a  general  property  therein  as  though  the  result  were  an 
article  of  his  own  manufacture.  The  general  property  in  the 
book  was  in  the  author  and  owner,  for  whom  the  work  of  print- 
ing was  done,  and  who,  in  a  suitable  case,  could  restrain  the 

1  8  B.  &  C.  277.  »  Ibid. 

2  1  H.  &  N.  73. 


260 


COMMENTARIES   ON   SALES, 


[book  IV. 


priuter  by  injunction  from  making  an  improper  disposition  of 
the  book.i 


1  Considering  the  differences  wliich  we 
have  pointed  out  between  Atkinson  v.  Bell, 
8  B.  &  C.  -277,  and  Clay  v.  Yates,  1  H.  & 
N.  73,  the  following,  from  the  latter  case, 
is  in  point.  Pollock,  C.  B.,  says  :  "  It 
may  happen  that  part  of  the  materials  is  ' 
found  by  the  person  for  whom  the  work 
is  done,  and  part  by  the  person  who  does 
the  work,  for  instance,  the  paper  for  print- 
ing may  be  found  by  the  one  party,  while 
the  ink  is  found  by  the  printer.  In  such 
cases  it  seems  to  me  that  the  true  crite- 
rion is,  whether  work  is  the  essence  of  the 
contract,  or  whether  it  is  the  materials 
supplied.  My  impression  is,  that  in  the 
case  of  a  work  of  art,  whether  in  gold, 
silver,  marble,  or  plaster,  where  the  ap- 
plication of  skill  and  labor  is  of  the  high- 
est description,  and  the  material  is  of  no 
importance  as  compared  with  the  labor, 
the  price  may  be  recovered  as  work,  labor, 
and  materials.  No  doubt  it  is  a  chattel 
that  was  bargained  for,  and  if  delivered 
might  he  recovered  as  goods  sold  and 
delivered  ;  still  it  may  also  be  recovered 
as  work,  labor,  and  materials.  There- 
fore it  appears  to  me  that  this  is  properly 
a  contract  for  work,  labor,  and  materials." 
We  think  this  is  rather  a  noji  sequitur, 
and  that,  without  taking  any  such  ex- 
treme ground  as  this,  the  judgment  of  the 
court,  holding  that  the  contract  was  not 
within  the  17th  section  of  the  statute  of 
frauds  as  a  sale  of  goods,  but  was  good  as 
a  contract  to  perform  work  and  labor,  on 
the  grounds  we  have  stated,  is  sustainable. 
It  is  thus  put  by  Martin,  B.,  who  says  : 
"There  are  three  matters  of  charge  well 
known  to  the  law,  viz.,  for  labor  simply, 
for  labor  and  materials,  and  for  goods  sold 
and  delivered.  Now  every  case  must  be 
judged  of  by  itself  ;  and  what  is  the  pres- 
ent case  ?  The  defendant,  having  a  manu- 
script, takes  it  to  a  prhiter  to  print  for 
him.  Then  what  does  he  intend  shall  be 
done  ?  He  intends  that  the  printer  shall 
use  his  type;  shall  set  it  up  in  a  frame  and 
impress  it  on  paper  ;  that  the  paper  shall 
be  submitted  to  the  author  ;  that  the  au- 
thor, having  corrected  it,  shall  send  it 
hack  to  the  printer,  who  shall  again  exer- 
cise labor  and  make  it  into  a  complete 
thing  in  the  shape  of  a  book.  That  being 
80,  I  think  that  the  plaintiff  was  employed 
to  do  work  and  labor,  and  supply  materi- 
als, and  for  that  he  is  entitled  to  be  paid. 
It  seems  to  me  that  the  true  criterion  is 
this.  Suppose  there  was  no  contract  as  to 
payment,  and  the  printer  brought  an  ac- 
tion to  recover  what  he  was  by  law  enti- 
tled to  receive,  would  that  be  the  value  of 
the  book  as  a  book  ?  I  apprehend  not  ; 
for  the  book  might  not  be  worth  half  the 


value  of  the  paper  on  which  it  was  printed, 
but  he  would  be  entitled  to  recover  for  his 
work,  labor,  and  materials  supplied;  there- 
fore, this  is  in  strictness  work,  labor,  and 
materials  done  and  provided  by  the  plain- 
tiff for  the  defendant."  While  we  think 
Clay  V.  Yates,  1  H.  &  N.  73,  was  well 
decided  on  the  facts,  we  think  that  the 
efforts  both  of  Pollock,  C.  B.,  and  Martin, 
B.,  to  deduce  from  that  case  a  principle  to 
suit  all  cases  is  not  successful.  On  the 
argument  in  that  case,  Martin,  B.,  said  : 
"  Suppose  an  artist  paints  a  portrait  for 
300  guineas,  and  supplies  the  canvas  for 
it,  wluch  is  worth  10s.,  surely  he  might 
recover  under  a  count  for  work  and  labor." 
But  in  Grafton  v.  Armitage,  2  C.  B.  336, 
Coltman,  J.,  says  :  "The  claim  of  a  tailor 
or  a  shoemaker  is  for  the  jjrice  of  goods 
when  delivered,  and  not  for  the  work  and 
labor  bestowed  by  him  in  the  fabrication 
of  them."  Where  the  artist  paints  a  por- 
trait there  might  be  a  ground  for  distin- 
guishing such  a  case  (where  the  portrait 
has  been  specially  ordered  and  would  not 
be  generally  marketable)  from  the  case 
where  he  was  to  paint  a  picture  which 
would  be,  after  its  completion,  a  fair, 
marketable  subject  of  sale.  But,  even  in 
the  case  of  a  portrait,  it  would  not,  in 
that  respect,  differ  materially  from  the 
case  of  a  tailor  making  a  suit  of  clothes 
to  measure,  which,  from  some  peculiarity 
in  the  person  for  whom  they  were  made, 
would  be  unsalable.  Nor  does  the  value 
of  the  materials  used,  relatively  with  that 
of  the  ultimate  product,  furnish  a  reliable 
test.  In  the  case  of  the  tailor,  he  may 
make  two  suits,  one  of  a  very  cheap  and 
the  other  of  a  very  expensive  material,  the 
cost  of  the  making  being  the  same  in  both 
cases,  and  j^et  it  would  seem  absurd  that 
he  could  recover  for  goods  sold  and  de- 
livered in  the  one  case  and  not  in  the 
other.  Or  that  the  ;nanufacturer  of  an- 
chors, where  the  value  of  the  raw  material 
approximates  closely  to  that  of  the  manu- 
factured article,  would  be  confined  to  an 
action  for  goods  sold  ;  while  the  manufac- 
turer of  watch-springs,  where  the  value  of 
the  raw  material  is  a  mere  fraction  of  the 
value  of  the  finished  article,  could  bring 
an  action  for  work  and  labor.  This,  clearly, 
is  not  the  criterion.  On  the  whole,  our 
deductions  would  be  that,  where  the  labor 
is  performed  on  the  materials  of  the  party 
ordering  the  work,  so  that  the  subject  con- 
tinues vested  in  him  throughout  the  whole 
of  the  work  ;  there,  as  there  would  be  no 
subject  of  sale,  the  claim  would  be  clearly 
for  work  and  labor.  But,  in  any  other 
case,  outside  of  express  contracts  for  work 
and  labor,  or  where  such  a  contract  could 


PAET   III.] 


WORK   AND   LABOR. 


261 


We  think  that  the  conclusion  we  have  reached  in  our  next  pre- 
ceding note  to  Clay  v.  Yates  ^  is  fully  sustained  by  the  holding  of 
the  court  in  the  subsequent  case  of  Lee  v.  Griffin,^  which  we  have 
only  examined  in  this  connection  after  having  written  the  preced- 
ing note. 

In  Lee  v.  Griffin  the  case  came  up  expressly  under  the  Statute 
of  Frauds.  The  action  was  brought  to  recover  £21  for  two  sets 
of  teeth  ordered  by  the  defendant's  intestate.  The  declaration 
contained  counts  for  goods  bargained  and  sold,  goods  sold  and 
delivered,  and  for  work  and  labor  and  materials.  Under  the  plea 
of  never  indebted,  the  defendant's  counsel  claimed  a  nonsuit, 
under  the  decision  in  Clay  v.  Yates,^  on  the  ground  that  the  con- 
tract was  within  the  seventeenth  section  of  the  statute.  The 
judge  refused  to  nonsuit,  and  directed  a  verdict  for  the  plaintiff, 
with  leave  reserved  to  the  defendant  to  move  for  a  nonsuit  or 
verdict.  The  court  held,  unanimously,  that  the  contract  was  for 
the  sale  of  goods,  wares,  or  merchandise  within  the  seventeenth 
section.  On  the  argument,  the  plaintiff's  counsel  relied  on  the  dicta 
of  Pollock,  C.  B.,  and  Martin,  B.,  in  Clay  v.  Yates,*  thus :  "  Sup- 
pose an  artist  paints  a  portrait  for  300  guineas,  and  supplies  the 
canvas  for  it  worth  10s.,  surely  he  might  recover  under  a  count  for 
work  and  labor;"  and  "In  the  case  of  a  work  of  art,  whether  in 
gold,  silver,  marble,  or  plaster,  where  the  application  of  skill  and 


be  fairly  implied  from  the  circumstances 
of  the  case  (such  cases,  for  instauce,  as 
Grafton  v.  Armitage,  2  C.  B.  336,  and 
Clay  V.  Yates,  1  H.  &  N.  73,  in  effect 
were),  where  the  subject  when  completed 
is  the  subject  of  a  sale,  and  remains  vested 
in  the  maker  so  that  he  could  pass  the 
property  in  it  to  a  third  party  ;  there, 
whether  the  subject-matter  be  a  portrait 
or  any  other  work  of  an  artist,  or  a  suit 
of  clothes  or  any  other  manufactured  ar- 
ticle, the  contract  for  such  an  article,  we 
think,  comes  within  the  17th  section  of 
the  statute,  as  a  contract  for  the  sale  of 
goods,  wares,  or  merchandise.  This  dis- 
criminates that  class  of  cases  where  a  count 
for  work  and  labor  and  materials  has  been 
sustained  for  work  done  by  farriers,  medi- 
cal men,  and  .surveyors,  and  such  a  case, 
as  is  sometimes  put,  of  a  conveyancer  pre- 
paring a  deed  ;  because,  in  these  cases, 
there  is  really  no  subject-matter  of  sale. 
In  Clay  v.  Yates,  1  H.  &  N.,  at  p.  80, 
Martin,  B.,  refers  to  the  fact  that  in 
Bensley  v.  Bignold,  5  B.  &  Aid.  33.'>, 
340,  Bayley,  J.  (whose  rea.soning  in  At- 
kinson V.  Bell,  8  B.  &  C.  277,  has  been 
RO  greatly  criticised),  with  Abbott,  C.  J., 
where  the  defence  was  that  the  printer 
had  not  affi.xed  his  name  to  the  book,  as 
required  by  the  39  Geo.  3,  c.  79,  s.  27, 
treated  it,  as  held  in  Clay  v.  Yates,  as  a 


contract  for  work  and  labor  and  materials. 
And  we  think,  quite  in  harmony  with  this, 
notwithstanding  the  dicta  of  Baylev,  J., 
in  Atkinson  v.  Bell,  8  B.  &  C.  277,"  that 
that  learned  judge  would  fully  assent  to 
the  decision  of  the  courts  in  Grafton  v. 
Armitage,  2  C.  B.  336,  and  Clay  v.  Yates, 
1  H.  &  N.  73  ;  and  that  these  cases  are 
not  inconsistent  with  the  actual  holding 
in  Atkinson  v.  Bell,  notwithstanding  the 
utterly  iireconcilable  dicta  which  are  to 
be  found  in  these  three  cases. 

In  the  2d  edition  of  Blackburn  on  Sales, 
p.  15,  the  editor  treats  this  question  as 
being  now  of  comparatively  little  import- 
ance in  England,  owing  to  the  change 
there  in  their  system  of  pleading.  But 
though,  under  the  cotnmon-law  system, 
any  but  the  most  careless  or  ignorant  of 
pleaders  would,  in  such  ca.ses,  insert  both 
counts;  entirely  independent  of  pleading 
the  question  is  important,  as  if  the  con- 
tract is  for  work  and  labor  only,  it  does 
not  come  within  the  17th  .section  of  the 
statute  of  frauds,  as  it  does  if  it  is  a  con- 
tract for  the  sale  of  goods,  wares,  or  mer- 
chandise; which  is  often  a  matter  of  very 
great  consequence. 

1  1  H.  &  N.  73. 

2  1  B.  &  S.  272. 
8  1  U.  &N.  73. 
*  Ibid,  at  p.  76. 


262  COMMENTARIES   ON   SALES.  [bOOK   IV. 

labor  is  of  the  highest  description,  and  the  material  is  of  no  im- 
portance as  compared  with  the  labor,  the  price  ma  be  recovered 
as  work,  labor,  and  materials."  But  Blackburn,  J.,  answered  him : 
"  Atkinson  v.  Bell  ^  is  an  express  authority  against  you  ;  though 
the  dictum  of  Bayley,  J.,^  that  a  plaintiff  cannot  maintain  an 
action  for  work  and  labor,  where  the  labor  was  bestowed  on  his 
own  materials,  is  not  law,  and  has  been  dissented  from  in  Grafton 
V.  Armitage  ^  and  also  in  Clay  v.  Yates."  * 

The  same  able  judge,  in  his  judgment,  states  the  law  with  his 
usual  accuracy  and  clearness.  Blackburn,  J.,  says  :  "  The  ques- 
tion is  whether  the  contract  was  one  for  the  sale  of  goods  or  for 
work  and  labor.  I  think  that  in  all  cases,  in  order  to  ascertain 
whether  the  action  ought  to  be  brought  for  goods  sold  and  deliv- 
ered, or  for  work  and  labor  done  and  materials  provided,  we  must 
look  at  the  particular  contract  entered  into  between  the  parties. 
If  the  contract  be  such  that,  when  carried  out,  it  would  result  in 
the  sale  of  a  chattel,  the  party  cannot  sue  for  work  and  labor ; 
but,  if  the  result  of  the  contract  is  that  the  party  has  done  work 
and  labor  which  ends  in  nothing  that  can  become  the  subject  of  a 
sale,  the  party  cannot  sue  for  goods  sold  and  delivered.  The  case 
of  an  attorney  employed  to  prepare  a  deed  is  an  illustration  of  this 
latter  proposition.  It  cannot  be  said  that  the  paper  and  ink  he 
uses  in  the  preparation  of  the  deed  are  goods  sold  and  delivered. 
The  case  of  a  printer  printing  a  book  would  most  probably  fall 
within  the  same  category." 

In  Atkinson  v.  Bell,^  the  contract,  if  carried  out,  would  have 
resulted  in  the  sale  of  a  chattel.  In  Grafton  v.  Armitage,^  Tindal, 
C.  J.,  lays  down  this  very  principle.  He  draws  a  distinction 
between  the  case  of  Atkinson  v.  Bell  and  that  before  him.  The 
reason  he  gives  is,  "  That,  in  the  former  case,  '  the  substance  of 
the  contract  was  goods  to  be  sold  and  delivered  by  the  one  party 
to  the  other  : '  in  the  latter, '  there  never  was  any  intention  to  make 
anything  that  could  properly  become  the  subject  of  an  action  for 
goods  sold  and  delivered.'  I  think  that  distinction  reconciles 
those  two  cases,  and  the  decision  of  Clay  v.  Yates '  is  not  incon- 
sistent with  them.  In  the  present  case  the  contract  was  to  deliver 
a  thing  which,  when  completed,  would  have  resulted  in  the  sale  of 
a  chattel ;  in  other  words,  the  substance  of  the  contract  was  for 
goods  sold  and  delivered.  I  do  not  think  that  the  test  to  apply 
to  these  cases  is  whether  the  value  of  the  work  exceeds  that  of  the 
materials  used  in  its  execution ;  for,  if  a  sculptor  were  employed 

1  8  B.  &  C.  277.  5  8  B.  &  C.  277. 

2  Pp.  283,  284.  «  2  C.  B.  340. 

8  2  C.  B.  336.  M  H.  &  N.  73. 

*  1  H.  &  X.  73. 


PART   III.]  WORK    AND   LABOR.  263 

to  execute  a  work  of  art,  greatly  as  his  skill  and  labor,  supposing 
it  to  be  of  the  highest  description,  might  exceed  the  value  of  the 
marble  on  which  he  worked,  the  contract  would,  in  my  opinion, 
nevertheless  be  a  contract  for  the  sale  of  a  chattel."  And  Cromp- 
ton,  J. :  "  The  main  question  Avhich  arose  at  the  trial  was,  whether 
the  contract  could  be  treated  as  one  for  work  and  labor,  or  wheth- 
er it  was  a  contract  for  goods  sold  and  delivered.  The  distinction 
between  these  two  causes  of  action  is  sometimes  very  fine ;  but 
where  the  contract  is  for  a  chattel  to  be  made  and  delivered,  it 
clearly  is  a  contract  for  the  sale  of  goods.  There  are  some  cases 
in  which  the  supply  of  the  materials  is  ancillary  to  the  contract, 
as  in  the  case  of  a  printer  supplying  the  paper  on  which  a  book 
is  printed.  In  such  a  case  an  action  might,  perhaps,  be  brought 
for  work  and  labor  done,  and  materials  provided,  as  it  could  hardly 
be  said  tliat  the  subject-matter  of  the  contract  was  the  sale  of  a 
chattel :  perhaps  it  is  more  in  the  nature  of  a  contract  merely  to 
exercise  skill  and  labor.  Clay  v.  Yates  ^  turned  on  its  own  pecu- 
liar circumstances.  I  entertain  some  doubt  as  to  the  correctness  of 
that  decision  ;  but  I  certainly  do  not  agree  to  the  proposition  that 
the  value  of  the  skill  and  labor,  as  compared  to  that  of  the  material 
supplied,  is  a  criterion  by  which  to  decide  whether  the  contract  be 
for  work  and  labor  or  for  the  sale  of  a  chattel.  Here,  however,  the 
subject-matter  of  the  contract  was  the  supply  of  goods.  The  case 
bears  a  strong  resemblance  to  that  of  a  tailor  supplying  a  coat, 
the  measurement  of  the  mouth  and  fitting  of  the  teeth  being  analo- 
gous to  the  measurement  and  fitting  of  the  garment."  We  see  no 
good  ground  for  the  doubt  expressed  by  Crompton,  J.,  as  to  the 
soundness  of  Clay  v.  Yates.^  While  we  think  that  Lee  v.  Grifiin  ^ 
is  undoubtedly  well  decided,  yet  we  are  quite  of  the  opinion  of 
Blackburn  and  Hill,  JJ.,  in  that  case,  that  the  decision  in  Clay  v. 
Yates  is  perfectly  sound.  Hill,  J.,  said  :  "  I  think  that  the  deci- 
sion in  Clay  v.  Yates  *  is  perfectly  right.  That  was  not  a  case  in 
which  a  party  ordered  a  chattel  of  another  which  was  afterwards 
to  be  made  and  delivered,  but  a  case  in  which  the  subject-matter 
of  the  contract  was  the  exercise  of  skill  and  labor.  Wherever  a 
contract  is  entered  into  for  the  manufacture  of  a  chattel,  there 
the  subject-matter  of  the  contract  is  the  sale  and  delivery  of  the 
chattel,  and  the  party  supplying  it  cannot  recover  for  work  and 
labor.  Atkinson  v.  Bell^  is,  in  my  opinion,  good  law,  with  the 
exception  of  the  dictum  of  Bayley,  J.,  wliich  is  repudiated  by 
Maule,  J.,  in  Grafton  v.  Armitagc,^  where  he  says :  '  In  order  to 
sustain  a  count  for  work  and  labor,  it  is  not  necessary  that  the 

M  H.  &  N.  73.  <  1  H.  &  N.  73. 

2  Ibid.  6  8  B.  &  C.  277. 

«  1  B,  &  S.  272.  »  2  C.  B.  339. 


264  COMMENTARIES   ON   SALES.  [BOOK   IV. 

work  and  labor  slioiild  be  performed  upon  materials  that  are  the 
property  of  the  plaintiff.'  And  Tindal,  C.  J.,  in  his  judgment  in 
the  same  case,  points  out  that  in  the  application  of  the  observa- 
tions of  Bayley,  J.,  regard  must  be  had  to  the  particular  facts  of 
the  case.  In  every  other  respect,  therefore,  the  case  of  Atkinson 
V.  Bell  is  law.  I  think  that  these  authorities  are  a  complete  an- 
swer to  the  point  taken  at  the  trial  on  behalf  of  the  plaintiff." 
Lee  V.  Griflin  is  the  latest  decided  English  case  down  to  the  pres- 
ent time,  and  we  think  it  thoroughly  well  settles  the  law  on  what 
was  previously  a  not  at  all  well-settled  question. 

The  deduction  we  have  made  in  our  note  ^  to  Clay  v.  Yates  ^  is 
fully  sustained,  in  principle,  by  the  holding  in  Lee  v.  Griffin.^ 
We  here  repeat  it :  Where  the  labor  is  performed  on  the  materials 
of  the  party  ordering  the  work,  so  that  the  subject  continues 
vested  in  him  throughout  the  whole  of  the  work ;  there,  as  there 
would  be  a  subject  of  sale,  the  claim  would  be  clearly  for  work  and 
labor.  But,  in  any  other  case,  outside  of  express  contracts  for 
work  and  labor,  or  where  such  a  contract  would  be  fairly  implied 
from  the  circumstances  of  the  case  (such  cases,  for  instance,  as 
Grafton  v.  Armitage  *  and  Clay  v.  Yates,^  in  effect,  were),  where 
the  subject  when  completed  is  the  subject  of  a  sale,  and  remains 
vested  in  the  maker  so  that  he  could  pass  the  property  in  it  to  a 
third  party  ;  there,  whether  the  subject-matter  be  a  portrait  or  any 
other  work  of  an  artist,  or  a  suit  of  clothes  or  any  other  manufac- 
tured article,  the  contract  for  such  an  article,  we  think,  comes  with- 
in the  seventeenth  section  of  the  statute,  as  a  contract  for  the  sale 
of  goods,  wares,  or  merchandise.  This  discriminates  that  class  of 
cases  where  a  contract  for  work  and  labor  and  materials  has  been 
sustained  for  work  done  by  farriers,  medical  men,  and  surveyors, 
and  such  a  case,  as  is  sometimes  met,  of  a  conveyancer  preparing  a 
deed,  because  in  these  cases  there  is  really  no  subject-matter  of  sale. 

We  think  that  Lee  v.  Griffin,^  in  deciding  that  a  contract  to  make 
a  set  of  artificial  teeth  is  a  contract  for  the  sale  of  goods,  wares, 
or  merchandise  within  the  seventeenth  section  of  the  statute, 
while,  on  principle,  thoroughly  well  decided,  deals  with  one  of  the 
most  extreme  cases  that  can  be  imagined,  and  settles  the  whole 
question.  The  supposed  exceptional  cases  of  work  and  labor  by 
a  painter,  a  sculptor,  a  shoemaker,  or  a  tailor,  all  clearly  come 
within  the  principle  conclusively  established  in  England  by  the 
unquestioned  case  of  Lee  v.  Griffin,^  and  no  longer  have  about 
them  an  element  of  doubt. 

1  Sfupra.  p.  260.  6  1  H.  &  X.  73. 

2  1  H.  &  N.  73.  6  1  B.  &  S.  272. 
8  1  B.  &  S.  272.  7  jind, 

♦  2  C.  B.  336. 


PART  IV.]  EXCHANGE  OR  BARTER.  265 


BOOK  lY. 

PART  IV. 
EXCHANGE  OR  BARTER. 

As  we  have  seen  ^  that  there  is  no  essential  difference  between 
a  sale  and  a  barter  or  exchange,  at  common  law,  but  that  the 
legal  effect  in  both  class  of  cases  is  essentially  the  same ;  so, 
under  the  Statute  of  Frauds,  as  regards  both  the  fourth  and  seven- 
teenth sections,  an  exchange  or  barter  comes  within  the  term 
"  sale,"  used  in  those  sections. 

The  objection  was  taken  in  Pembroke  v.  Thorpe  ^  that  a  parol 
contract  for  the  exchange  of  lands  comes  within  the  fourth  section 
of  the  statute,  and  it  was  so  held  by  Lord  Hardwicke,  who  also 
there  held  that  in  equity  the  part  performance  of  the  contract 
would  take  the  case  out  of  the  statute  in  the  same  way  that  it  does 
in  the  case  of  a  sale.  It  has  likewise  been  held  in  the  Supreme 
Court  of  the  United  States  that  parol  proof  of  the  intention  to 
exchange  lands  cannot  be  permitted.^  And  in  New  Hampshire,  it 
has  so  been  held,  where  the  consideration  for  the  sale  of  land 
by  parol  was  money,  labor  to  be  performed,  and  chattels  to  be 
delivered.*  The  court  here  dealt  with  the  question  as  to  how 
far  there  was  a  remedy  at  law  where  there  had  been  a  part  per- 
formance of  the  contract,  thus  :  "  A  parol  contract  for  the  sale  of 
lands  is  not  declared  by  the  statute  to  be  void.  It  is  only  declared 
that  no  action  shall  be  maintained  upon  it.^  And  we  are  of 
opinion  that  the  plaintiff  is  not  at  liberty  to  treat  the  contract  for 
the  sale  of  the  land  in  this  case  as  void,  unless  the  defendant  has 
refused  or  disabled  himself  to  perform  it.  If  one  man  contracts 
with  another  to  perform  labor,  and  receive  as  a  compensation  the 
conveyance  of  a  particular  tract  of  land,  although  the  contract  to 
convey  the  land  is  not  a  proper  foundation  for  an  action,  yet  still 
common  honesty  and  fair  dealing  require  that  he  shall  not  be  at 
liberty  to   refuse  the  land,  and  demand  money,  until  the  other 

1  Ante,  Vol.  I.,  Book  I.,  Part  I.  *  Lane  v.  Shackford,  5  N.  H.  130,  133. 

2  Slated  in  note  to  Gordon  v.  Gordon,  ^  Davenport  v.  Ma.son,  16  Mass.  85  ; 
3  Swanst.  437,  441.  Crosby  v.  Wadsworth,  6  East,  611. 

3  Clark  V.  Graham,  6  Wheat.  577. 


266  COMMENTARIES   ON   SALES.  [BOOK   IV. 

party  has  refused  to  execute  the  contract.  But  we  have  no  doubt 
that  in  o-eneral,  when  a  contract  within  the  Statute  of  Frauds  has 
been  in  part  executed  by  one  party,  there  is  a  plain  remedy  for 
such  party,  to  a  certain  extent,  in  a  court  of  law,  if  the  other 
party  fraudulently  refuse  to  execute  the  contract  on  his  part.  If 
money  has  been  paid,  it  may  be  recovered  back.  If  labor  has  been 
performed,  a  compensation  for  it  may  be  recovered.  These  prin- 
ciples are  recognized  in  the  following  cases."  ^ 

At  common  law  an  exchange,  without  livery  of  seisin,  prior  to 
the  enactment  of  29  Car.  2,  c.  3,  transferred  real  estate  when 
the  lands  lay  in  the  same  county,  and  such  exchange,  by  parol, 
was  o-ood,  provided  each  party  went  into  possession  of  the  lands 
acquired  by  such  exchange  ;  but  if  the  lands  were  situate  in 
different  counties,  or  either  party  died  before  going  into  pos- 
session, such  parol  exchange  was  void.- 

But  in  Ohio,  it  was  held  that  this  principle  of  the  common  law 
had  never  been  adopted  there,  and  that  a  parol  exchange  of  lands 
there  is  invalid  to  pass  any  legal  title  therein.^  And  in  a.  d.  1813 
the  same  doctrine  was  held  in  Maryland.*  In  Moss  v.  Culver  ^  it 
is  said  :  "  It  is  true,  as  has  been  often  said,  there  is  no  difference 
between  a  parol  sale  and  an  exchange  in  regard  to  the  requisites 
to  take  it  out  of  the  Statute  of  Frauds  and  Perjuries.  A  clear, 
explicit,  and  unambiguous  contract,  and  a  taking  of  possession 
under  and  in  pursuance  of  the  contract,  are  as  much  requisites  of 
a  parol  exchange  as  of  a  sale.  But  there  is  a  marked  difference 
in  the  evidence  which  establishes  the  possession.  A  sale  is  con- 
fined to  a  subject  coming  from  a  single  side.  It  has  no  relation 
to,  or  dependence  on  any  other  subject.  The  evidence  of  posses- 
sion taken  of  it  is  therefore  confined  to  the  single  subject,  and  if 
not  taken  in  a  seasonable  time,  or  so  as  to  make  it  doubtful 
whether  it  is  attributable  to  the  contract,  the  parol  sale  is  not 
taken  out  of  the  statute.  But  an  exchange  necessarily  has  a  sub- 
ject on  each  side  which  stands  related  to  the  other.  One  is  the 
representative  of  the  other,  so  much  so  that  the  law  implies  a 
contract  of  warranty  by  the  act  of  exchanging.  If  therefore  the 
evidence  shows  a  clear,  unequivocal,  and  complete  taking  posses- 
sion of  one  of  the  subjects  of  an  exchange,  by  the  party  owning  the 

1  Kidder  v.  Hunt,  1  Pick.  .328  ;  Sher-  *  Carroll's  Lessee  v.  Maydwell,  3  Har. 
burns  v.  Fuller,  5  Mass.  133  ;  Boyd  v.  &  J.  292  ;  Maydwell  v.  Carroll,  3  Har.  & 
Stone,  11  Mass.  342  ;  Mavor  v.  Pyne,  2  J.  361.  But  see  in  Pennsylvania,  Wood 
C.  &  P.  91  ;  Burlingame  v.  Burlingame,  v.  Farmare,  10  Watts,  195  ;  Miles  v. 
5  Johns.  85  ;  Ketchum  v.  Evartsou,  13  Miles,  8  W.  &  S.  135  ;  Moore  v.  Small, 
Johns.  365.  19  Pa.  St.  461  ;  Reynolds  v.  Hewett,  27 

2  Littleton,  §§  62-65  ;  Co.  Litt.  §§  50,  Pa.  St.  176  ;  Moss  r.  Culver,  64  Pa.  St. 
51  :  Shep.  Touch.  294.  414,  under  the  effect  of  the  eq^uitable  doc- 

^  Lessee  of  Lindsley  v.  Coates,  1  Ohio,     trine  of  part  ])erforniauce. 
243  (A.  D.  1823).  5  64  Pa.  St.  414. 


PART  IV.]  EXCHANGE  OR  BARTER.  267 

other  subject,  it  strengthens  the  evidence  of  a  possession  taken 
by  the  opposite  party  of  the  corresponding  subject.  Evidence  of 
possession  that  might  seem  weak  and  inconclusive  in  the  case  of 
a  parol  sale  is  thus  made  clear  and  convincing  in  the  case  of  an 
exchange."  This,  however,  would  amount  to  no  more  than  if,  in 
the  case  of  a  sale,  the  possession  were  taken  by  the  one  party  and 
the  money  consideration  were  received  by  the  other. 

In  Anon.,1  it  was  held  that  in  exchanges  of  land  the  word  "  ex- 
change "  is  necessary  in  the  conveyance,  because  it  imports  a  spe- 
cial warranty  in  respect  of  the  mutual  consideration  of  the  lands 
exchanged.  It  is  there  said,  "  Permutatio  vicina  est  eynptionij 
but  exchanges  were  the  original  and  natural  way  of  commerce, 
precedent  to  buying,  for  there  was  no  buying  till  money  was  in- 
vented. Now,  in  exchanging,  both  parties  are  buyers  and  sellers, 
and  both  equally  warrant ;  and  this  is  a  natural  rather  than  a  civil 
contract ;  so  by  the  civil  law,  upon  a  bare  agreement  to  exchange, 
without  a  delivery  on  both  sides,  neither  of  the  parties  could  have 
an  action  upon  such  an  agreement,  as  they  may  in  cases  of  sell- 
ing ;  but  if  there  was  a  delivery  on  one  side,  and  not  on  the  other, 
in  such  case  the  deliverer  must  have  an  action  to  recover  the 
thing  which  he  delivered,  but  he  could  have  no  action  to  enforce 
the  other  to  deliver  what  he  agreed  to  deliver,  and  which  the 
deliverer  was  to  have  in  lieu  of  that  thing  which  he  delivered  to 
the  other." 

In  Dowling  v.  McKenney  ^  the  defendant  orally  agreed  to  con- 
vey to  the  plaintiff  a  lot  of  land  valued  at  S400,  and  to  take,  in 
exchange  or  payment  therefor,  a  monument,  estimated  to  be  of 
the  value  of  '$200,  when  completed,  and  thd  balance  in  money. 
After  the  monument  was  finished,  the  plaintiff  tendered  it  to  the 
defendant,  together  with  the  balance  in  money,  according  to  the 
contract.  Tlie  defendant  refused  to  accept  the  monument  or 
money,  or  to  give  the  deed.  The  court,  in  holding  that  this  was 
a  contract  within  the  Statute  of  Frauds,  said,  "  Whether  this  was 
a  sale  or  an  exchange  of  property  is  immaterial.  Assuming  that 
it  was  au  exchange  of  the  land  for  the  monument,  with  a  balance 
in  money  to  be  paid  by  the  plaintiff,  it  is  to  be  governed  by  the 
same  rules  as  apply  to  a  sale  when  the  whole  consideration  is  to 
be  paid  in  money.  The  contract  was  therefore  within  the  pro- 
hibition of  the  Statute  of  Frauds.  The  oral  promise  on  the  part 
of  the  defendant  was  not  to  pay  money  for  the  monument,  but 
to  convey  a  lot  of  land.  If  the  promise  had  been  to  pay  in  money 
for  the  monument,  when  completed,  it  might  have  come  within 
the  rule  that  an  agreement  to  construct  or  build  an  article  to  be 

1  3  Salk.  157.  =  124  Mass.  478, 


268  COMMENTARIES   ON   SALES.  [BOOK   IV. 

paid  for  when  finished  need  not  be  proved  by  a  memorandum  in 
writino-,  as  in  Mixer  v.  Howarth.^  But  that  view  of  the  case  can- 
not be  sustained  on  the  evidence  as  reported  ;  it  does  not  appear 
to  have  been  the  intention  of  the  parties  to  make  any  contract, 
except  that  which  included  the  conveyance  of  the  land,  which 
was  the  sole  consideration  moving  from  the  defendant.  That 
contract  was  not  in  writing,  and  cannot  be  enforced,  in  wdiole  or 
in  part.  The  plaintiff  cannot  separate  that  portion  wliich  relates 
to  the  building  of  the  monument  from  the  whole,  and  recover 
upon  it  as  a  distinct  undertaking.  This  would  be  to  make  a  new 
contract  between  the  parties ;  for  it  was  no  part  of  the  agreement, 
as  stated,  to  pay  $200  in  money  for  the  monument,  but  to  allow 
that  sum  as  a  portion  of  the  consideration  for  the  conveyance  of 
the  land.  The  plaintiff  therefore  cannot  recover  for  the  value  of 
the  monument." 

In  Kuhn  v.  Gates  ^  it  was  held,  in  the  case  of  an  exchange  of  a 
colt  and  140  in  money  for  a  mare,  that  the  delivery  of  the  colt  was 
sufficient  to  bind  the  bargain ;  the  delivery  of  any  article  of  value 
as  an  earnest  to  bind  a  bargain  being  a  sufficient  compliance  with 
the  provisions  of  the  Statute  of  Frauds  respecting  the  sale  of  per- 
sonal property  of  the  value  of  150  or  upwards.  Not  only  under 
the  Statute  of  Frauds,  but  under  analogous  statutes,  an  exchange 
or  payment  in  goods  is  held  to  be  equivalent  to  a  sale  or  to  a 
payment  in  money.     We  examine  some  of  the  authorities. 

In  Girard  v.  Patterson  ^  the  Supreme  Court  of  Indiana  held 
that  the  plea  of  payment  of  a  debt  in  goods,  wares,  and  merchan- 
dise was  bad,  because,  as  a  plea  of  accord  and  satisfaction,  it  was 
insufficient,  as  that  plea  required  that  it  should  be  averred  that 
the  goods  were  delivered  in  payment  of  the  demand,  and  also  that 
they  were  accepted  in  satisfaction  thereof.  For  this  Drake  v. 
Mitchell  4  was  cited.  But  this  case  was  one  where  a  bill  of  ex- 
change for  part  only  of  the  debt  was  given,  and  the  declaration 
did  not,  as  in  the  Indiana  case,  contain  an  averment  of  the  pay- 
ment of  the  full  amount  of  the  debt  and  interest.  But,  in  the 
same  case  in  Indiana,  it  was  held  that  as  a  plea  of  payment  it  was 
also  bad,  on  the  ground  that  a  plea  of  payment  cannot  be  sup- 
ported unless  the  payment  has  been  made  in  money  alone. 

But  this  case  is  not  law,  and  has  been  expressly  repudiated  in 
later  cases  in  Indiana.  In  Louden  v.  Birt  ^  it  is  laid  down  that 
payment  may  be  made  in  anything  that  the  creditor  will  accept 
as  payment.    And  under  the  general  issue,  or  as  a  general  plea 

1  21  Pick.  105.  4  3  East,  251. 

2  92  Ind.  66.  6  4  Iq^.  5^6   570, 
8  3  Blackf.  353. 


PART  IV.]  EXCHANGE  OR  BARTER.  269 

of  payment,  pa3^ment  in  anything  that  has  been  accepted,  or 
received  as  payment,  may  be  proved.  And  in  these  cases  it  is 
a  question  for  the  jury  wiiether  what  may  have  been  given  or 
received  was  a  payment  or  not,  in  the  particular  case.  This 
case  follows  Moore  v.  Stadden  ^  and  Willard  v.  Gormer.^  In  the 
former  of  these,  in  an  action  on  a  promissory  note,  by  an  indorsee 
after  the  note  had  matured,  the  defence  was  that  the  defendant 
performed  work  and  labor  for  the  payee,  while  he  held  the  note, 
which,  by  agreement,  was  to  be  applied  to  the  payment  of  it. 
The  defence  was  held  good.  In  the  latter  of  these  cases  it  was 
held,  in  an  action  on  a  promissory  note,  that  a  creditor  may 
receive  in  satisfaction  and  discharge  of  his  demand,  an  account 
against  a  stranger,  as  well  as  a  negotiable  note,  or  other  thing  in 
action.  The  question  always  is,  whether  he  intended  to  receive 
it  in  absolute  payment,  and  to  discharge  the  debtor ;  and  this 
is  a  question  to  be  submitted  to  the  jury.  Louden  v.  Birt^  was 
recognized  in  the  later  case  of  Tilford  v.  Roberts,*  where  it  was 
held  that  payment  may  be  made  in  anything  which  the  creditor 
will  accept  as  payment. 

In  the  very  late  Indiana  case  of  Weir  v.  Hudnut  ^  (a.  d.  1888) 
a  similar  question  came  up  under  the  Statute  of  Frauds,  and  was 
decided  in  accordance  with  the  holding  in  Kuhn  v.  Gates,^  which 
we  have  stated  ante,  p.  268.  In  "Weir  v.  Hudnut,  which  was  an 
action  for  the  non-acceptance  by  the  defendant  of  5000  bushels  of 
corn  sold  him  by  the  plaintiff,  it  was  alleged  that  as  a  part  of  the 
consideration  for  the  corn,  the  defendant  delivered  the  plaintiff 
1500  sacks,  to  be  used  for  sacking  the  corn ;  that  the  use  of  such 
sacks  for  that  purpose  was  of  the  value  of  $25,  and  that  the  use 
of  such  sacks  was  received  in  part  payment  for  the  corn.  On 
demurrer  to  this  complaint,  the  court  held,  reversing  the  judg- 
ment of  the  Circuit  Court,  that  payment  in  articles  of  property 
will  bind  the  bargain  and  prevent  the  operation  of  the  Statute  of 
Frauds.  The  Supreme  Court  say,  "  What  the  parties  agree  shall 
constitute  payment,  the  law  will  adjudge  to  be  payment.  It  is 
competent  for  parties  to  designate  by  their  contract  how  and  in 
what  payment  may  be  made.  It  is  by  no  means  true  that  pay- 
ment can  only  be  made  in  money.  On  the  contrary,  it  may  be 
made  in  property  or  in  services.  In  short,  whatever  the  parties 
agree  shall  constitute  payment  will  be  regarded  by  the  courts  as 
payment,  provided  the  thing  agreed  upon  is  of  some  value.  .  .  . 
The  complaint  brings  the  case  within  the  principles  declared  by 

1  Wrijrht  (Ohio),  88.  <  8  \nd.  254. 

2  1  Sandf.  50.  *  115  hid.  525. 
8  4  Ind.  566.  6  92  Ind.  66. 


270  COMMENTAEIES   ON   SALES.  [BOOK   IV. 

the  authorities,  for  it  shows  that  the  value  of  the  use  of  the  sacks 
was  125,  and  that  the  purchase-price  to  that  extent  was  paid  by 
the  seller's  furnishing  the  sacks  for  the  use  of  the  buyer.  If  the 
seller  had  agreed  to  furnish  for  the  use  of  the  buyer  a  corn- 
sheller,  or  some  other  machine,  as  part  payment  of  the  purchase- 
price,  it  would  be  very  clear  that  such  a  payment  would  bind  the 
bargain,  and  there  is  no  difference  in  principle  between  such  a 
case  and  one  like  the  present,  for  it  can  make  no  difference  what 
thing  of  value  is  given  in  part  payment.  Of  course,  the  thing 
must  be  given  in  part  payment  of  the  purchase-money  agreed 
upon,  or  it  will  be  unavailing ;  but  here,  as  we  have  said,  the 
property  furnished  the  buyer  is  conceded  to  have  been  in  part 
payment  of  the  agreed  price  of  the  corn." 

So,  in  Hunter  v.  Wetsell,^  where  it  was  claimed  that  as  a  check 
was  not  money,  the  receipt  of  a  check  on  a  parol  contract  for 
goods  over  the  value  of  $50,  was  not  a  payment  of  any  part  of  the 
purchase-money,  inasmuch  as  it  was  not  in  itself  payment,  and 
having  been  drawn  upon  a  bank,  could  not  have  been  in  fact  paid 
until  afterward ;  and  so  there  was  no  payment  "  at  the  time,"  to 
satisfy  the  requirements  of  the  New  York  statute  to  that  effect.^ 
But  the  court  held  that  while  it  is  true  that  a  check,  in  and  of  it- 
self, is  not  payment,  it  may  become  so  when  accepted  as  such,  and 
is  in  due  course  actually  paid.  While  not  money,  it  is  a  thing 
of  value,  and  is  money's  worth,  when  drawn  against  an  existing 
deposit  which  remains  until  the  check  is  presented.  And  that,  in 
that  case,  the  check  having  been  subsequently  paid,  its  receipt,  at 
the  time  of  the  making  of  the  contract,  was  a  sufficient  payment 
to  take  the  case  out  of  the  New  York  Statute  of  Frauds. 

In  Combs  v.  Bateman^  a  verbal  agreement  to  exchange  horses  of 
a  greater  value  than  $^50,  for  oxen  and  -$20,  was  expressly  held  to 
be  within  the  statute,  and  not  taken  out  by  the  delivery  of  the 
party's  own  note  for  the  -120.  In  Sharp  v.  Carroll  ^  a  verbal  agree- 
ment for  the  purchase  of  wheat  was  held  to  be  taken  out  of  the 
statute  by  the  delivery  by  the  vendee  to  the  vendor  of  the  latter's 
promissory  note  for  $500  in  part  payment.  In  so  deciding,  the 
court  said :  "  It  was  argued  by  counsel  for  defendant  that,  the 
sale  being  by  parol,  and  not  accompanied  by  an  immediate  actual 
delivery  of  the  property,  the  surrender  of  the  note  of  the  vendor 
was  not  such  a  part  payment  as  will  take  the  case  out  of  the 
Statute  of  Frauds  and  render  it  valid.     The  authorities  cited  for 

I  «^  ^;  ^-  ^^^-  "•  Hyde,  32  N.  Y.  519  ;    45  N.  Y.   148, 

•*  See  Hunter  v.  Wetsell,  57  N.  Y.  375  ;  149.  " 
Allen    V.   Aguina,    5   N.  Y.  S.   C.    380  ;  3  10  Barb.  573. 

Sprague  v,  Blake,  20  Wend.  61  ;  Brabin  «  66  Wis.  62. 


I 


PART   IV.] 


EXCHANGE   OR   BARTER. 


271 


that  proposition  do  not  sustain  it.  They  only  hold  that  an  agree- 
ment to  surrender  a  claim  or  give  a  credit,  in  payment  or  part 
payment  for  the  thing  purchased,  is  not  sufficient.  The  surren- 
der must  actually  be  made  or  the  credit  given.  The  purchaser 
must,  at  the  time  of  the  purchase,  part  with  something  of  value. 
In  this  case  the  plaintiff  did  part  with  something  of  value  in  part 
payment  for  the  wheat,  to  wit,  the  note  he  held  against  the  ven- 
dor. Such  note  was  eventually  cancelled  by  the  delivery  thereof 
to  the  maker  pursuant  to  the  parol  contract."  ^ 

On  the  same  principle  on  which  these  cases  have  been  decided 
under  the  Statute  of  Frauds,  it  has  been  held  in  Massachusetts  that 
liquor  exchanged  for  services,  where  such  liquor  has  been  given 
and  intended  as  payment  for  such  service,  and  is  so  received,  con- 
stitutes a  sale  within  the  meaning  of  the  Intoxicating  Liquor  Acts.^ 
And  in  two  very  able  judgments  ^  by  Chief  Justice  Bigelow/  an 
exchange  is  treated  under  those  acts  as  synonymous  with  a  sale. 

In  Walker  v.  Xussey,^  the  plaintiff  sued  for  the  price  of  a  quan- 
tity of  leather  as  for  goods  sold  and  delivered  by  him  to  the 
defendant,  above  £10  in  value.  The  defendant  had  previously 
sold  the  plaintiff  goods  for  <£4  14a.  lid.  On  the  new  dealing  be- 
tween them  the  agreement  was,  that  that  sum  should  be  taken  as 
part  payment  by  the  defendant,  and  that  he  should  only  pay  the 
plaintiff  the  difference  between  that  sum  and  the  price  of  the 
goods  bought  from  him.  This  contract  was  verbal ;  but  it  was 
argued,  that  the  <£4  14s.  llc^.  was  a  part  payment  by  the  defend- 
ant, so  as  to  take  the  case  out  of  the  Statute  of  Frauds.  But  the 
court  held  that  it  was  not.^ 


1  See  also  as  to  an  exchange  of  cotton 
being  within  the  statute,  Phillips  v.  Oc- 
mulgee  Mills,  55  Ga.  633.  So,  in  Rutan 
V.  Hinchman,  30  N.  J.  L.  255,  a  verbal 
agreement  to  sell  and  exchange  a  horse  of 
the  value  of  $200  for  a  lot  of  land  and 
§100  in  cash,  was  held  to  be  within  the 
statute. 

2  Mason  v.  Lothrop,  7  Gray,  354,  358. 

3  See  supra,  Vol.  I.  p.  10,  n.  2. 

*  Commonwealth  v.  Clark,  14  Gray, 
367,  and   Howard  v.  Harris,  8  Allen,  297. 

5  16  M.  &  W.  302. 

s  Parke,  B.,  in  his  judgment,  said  :  "If 
the  contract  had  been  shown  to  have  been 
that  the  parties  were  to  be  put  in  the 
same  situation  at  that  time,  as  if  the 
plaintiff's  debt  to  the  defendant  had  then 
been  paid,  or  as  if  it  had  been  paid  to  the 
defendant  and  repaid  by  him  to  the  plain- 
tiff as  earnest,  the  statute  might  have 
been  satisfied,  without  any  money  hav- 
ing passed  in  fact  ;  but  the  agreement 
was,   in  fact,   that  the   goods   should  be 


delivered  by  the  plaintiff  by  way  of  satis- 
faction of  the  debt  previously  due  from 
him  to  the  defendant,  and  that  the  de- 
fendant should  pay  for  the  rest.  Then 
the  buyer  did  not  'give  something  in 
earnest  to  bind  the  bargain,  or  in  part 
of  payment.'  The  'part  payment'  men- 
tioned in  the  statute  must  take  place  ' 
either  at  or  subsequent  to  the  time  when 
the  bargain  was  made.  Had  there  been  a 
bargain  to  sell  the  leather  at  a  certain 
price,  and  subsequently  an  agreement  that 
the  sum  due  from  the  jilaintiff  was  to  be 
wiped  off  from  the  amount  of  that  price, 
or  that  the  goods  delivered  should  be  taken 
in  satisfaction  of  the  debt  due  from  the 
plaintiff,  either  might  have  been  an  equiv- 
alent to  part  payment,  as  an  agreement  to 
set  off  one  item  against  another  is  equiva- 
lent to  payment  of  money.  But  as  the 
stipulation  respecting  tlie  plaintiff's  debt 
was  merely  a  portion  of  the  contempora- 
neous contract,  it  was  not  a  giving  some- 
thing to  the  plaintiff  by  way  of  earnest,  or 


272  COMMENTARIES   ON   SALES.  [BOOK  IV. 

In  Bach  v.  Owen  ^  a  verbal  agreement  for  the  exchange  of  horses 
was  held  to  be  within  the  Statute  of  Frauds,  and  that  the  payment 
by  one  to  the  other  of  earnest-money  took  the  case  out  of  the 

statute. 

In  Kcarslake  v.  Morgan  ^  it  was  held  that  the  plea  of  the  pay- 
ment, as  an  accord  and  satisfaction,  of  the  promissory  note  of  a 
third'  party,  was  a  good  plea.  So,  in  England,  under  the  Bank- 
ruptcy Act,3  which  provides  "  that  no  debtor  of  the  bankrupt  shall 
be  endangered  for  the  jjapnent  of  his  debt  truly  and  bond  fide  to 
any  such  bankrupt  before  such  time  as  he  shall  understand  or 
know  that  he  is  become  a  bankrupt,"  it  was  held  that  the  giving 
for  such  a  debt,  by  the  debtor  to  the  bankrupt,  of  a  bill  of  ex- 
change, was  a  payment  under  this  act.* 

So,  again,  under  the  82nd  section  of  6  Geo.  4,  c.  16,  it  was  held 
that  a  delivery  of  goods,  bond  fide  made  in  part  payment  of  a 
previous  debt,  after  a  secret  act  of  bankruptcy  committed  by  the 
debtor,  is  a  payment  protected  by  that  act.  The  court  held  that 
as  the  section  did  not  expressly  provide  that  the  payment  should 
be  made  in  money,  it  might  be  made  in  money  or  money's  worth. 
But,  in  Carter  v.  Breton,^  where  the  goods  were  delivered  not  in 
payment,  but  as  a  sale,  the  court  held  that  it  was  but  a  set-off, 
and  not  protected  by  the  act  as  a  payment. 

And  so,  under  the  Statute  of  Limitations,  since  the  passage  of 
Lord  Tenterden's  Act,^  though  goods  sold,  or  services  rendered 
may  not  take  the  case  out  of  the  statute,  as  there  must  be  a  part 
payment  in  cash,  or  what  is  equivalent  to  it,  to  have  that  effect,^ 
yet,  where  there  is  an  agreement  to  receive  such  services,  or  take 
goods,  in  part  payment,  and  they  are  received  and  taken  on  that 
agreement,  it  is  part  payment. 

Hence  it  was  held,  in  Hart  v.  Nash,^  that  if  the  parties  to  a  bill 
of  exchange  agree  that  goods  shall  be  supplied  in  part  payment, 
and  they  are  supplied  and  taken  accordingly,  that  is  part  payment, 
so  as  to  prevent  the  operation  of  the  Statute  of  Limitations.     In 

in  part  of  payment,  then  or  subsequently.  ^  j  j^c.  1,  c.  15,  s.  14. 
...  No  evidence  was  given  of  the  actual  *  In  so  deciding.  Lord  Kenyon,  in  de- 
payment  or  discharge  of  the  debt  due  from  livering  the  judgment  of  the  court,  said  ; 
the   plaintiff,   so   that  all   rested   in   the  "Now,  if  the  defendant  had  given  other 
agreement  merely."     And  Pollock,  C.  B.  :  goods  in  exchange  for  these  at  the  time, 
"  Had  these  parties  positively  agreed  to  that  would  have  been   a  payment  to  all 
extinguish  the  debt  of  £i  odd,  and  receive  intents  and  purposes,  though  not  made  in 
the  goods  pro  tanto  instead  of  it,  the  law  moneys   numbered.      And   it  has  always 
might   have  been   satisfied,    without   the  been  holden  that  giving  a  bill  of  exchange 
ceremony  of  paying  it  to  the  defendant,  is  deemed  a  payment  in  satisfaction,  pro- 
and  repaying  it  by  him.     But  the  actual  vided  the  bill  be  paid  when  due."     Wil- 
con tract    did    not    amount   to   that,    and  kins  v.  Casey,  7  T.  R.  711. 
there  has  been  no  part  payment  within  5  g  Bing.  617. 
the  statute."  6  9  Geo.  4,  c.  14,  s.  1. 

1  5  T.  R.  409.  ''  Williams  v.  Griffiths,  2  C.  M.  &  K.  45. 

2  5  T.  R.  513.  8  2  C.  M.  &  R.  337. 


PART   IV.]  EXCHANGE   OR   BARTER.  273 

Turner  v.  Dodwell,^  where  it  was  held  that  where  a  bill  of  ex- 
change has  once  been  so  delivered  in  payment  on  account  of  a 
debt  as  to  raise  an  implication  of  a  promise  to  pay  the  balance, 
the  Statute  of  Limitations  is  answered,  as  from  the  time  of  such 
delivery,  whatever  afterwards  becomes  of  the  bill ;  the  word  "  pay- 
ment "  in  the  proviso  in  9  Geo.  4,  c.  14,  §  1,  beiug  used  in  the 
popular  sense,  so  as  to  include  a  giving  and  taking  of  it  in  satis- 
faction of  the  debt ;  the  court  said :  "  We  do  not  see  why  the  im- 
mediate operation  of  the  delivery  of  a  bill,  as  an  acknowledgment 
of  the  balance  of  the  demand  being  due,  is  at  all  affected  by  its 
operation  as  a  payment  being  liable  to  be  defeated  at  a  future 
time.  The  statute  intending  to  make  a  distinction  between  mere 
acknowledgments  by  word  of  mouth  and  acknowledgments  proved 
by  the  act  of  payment,  it  surely  cannot  be  material  whetlier  such 
payment  may  afterwards  be  avoided  by  the  thing  paid  turning  out 
to  be  worthless.  The  intention,  and  the  act  by  which  it  is  evinced, 
remain  the  same.  We  think  that' the  word  'payment'  must  be 
taken  to  be  used  by  the  legislature  in  a  popular  sense,  and  in  a 
sense  large  enough  to  include  the  species  of  payment  in  question : 
and  we  should  think  that  the  acknowledgment  of  liability  as  to 
the  remainder  of  the  debt  is  not  at  all  altered  by  the  fact  of  the 
notes  by  which  it  was  paid  turning  out  to  be  counterfeit.  In  all 
these  cases  the  force  of  the  acknowledgment  is  the  same ;  and  the 
payment  is,  we  think,  a  sufficient  pavment  within  the  words  of  9 
Geo.  4,  c.  4." 

In  Maillaid  v.  The  Duke  of  Argyle,^  the  Court  of  Common 
Pleas  held  that  the  word  "  payment "  as  applicable  to  a  transac- 
tion of  this  kind,  even  where  used  in  a  plea,  did  not  mean  payment 
in  satisfaction,  but  might  be  treated  as  used  in  its  popular  sense.^ 

And  in  Hooper  v.  Stevens'^  it  was  held,  that  where  it  has  been 
agreed  between  debtor  and  creditor  that  the  latter  shall  receive 
goods  in  reduction  of  his  demand,  the  delivery  of  such  goods 
operates  as  a  payment  within  the  first  section  of  Lord  Tenterden's 
Act,  to  bar  the  Statute  of  Limitations.  It  was  claimed  in  this  case 
that  the  delivery  of  the  goods  could  not  operate  as  o.  payment,  inas- 
much as  the  defendants,  if  suiug  for  the  price,  could  only  declare 
as  for  goods  and  not  for  a  liquidated  sum  of  money.     But  the 

1  3  E.  &  B.  136.  see  Tanner  v.  Smart,  6  B.  &  C.  603  ;  Ir- 

2  6  M.  &  G.  40.  ving  v.  Veitch,  3  M.  &  W.  90  ;  Gowan  v. 
8  Mr.  Justice  Maule,  in  that  case,  says  :     Foster,  3  B.  &  Ad.  507  :  Giiffiths  v.  Owen, 

"  Payment  is  not  a  technical  word  ;  it  "has  13   M.  &  W.    58;    lielshaw  v.    Busli,   11 

been  imported  into  law  proceedings  from  C.  B.  191  ;  Bishop  v.  Crawshay,  3   B.  & 

the  exchange,  and  not  from  law  treatises.  C.   415  ;    Foster  v.    Dawber,  6   Kx.   839  ; 

When  you  speak  of  paying  in   cash,  that  James  v.  "Williams,  13  M.  &  W.  828,  833  ; 

means  in  satisfaction,  Ijut  when   by  V)ill,  Turncy  v.  Dodwell,  3  E.  &  B.  136. 
that  does  not  import  satisfaction,  unless  *  4  A.  &  E.  71. 

the   bill   is   ultimately  taken  up."     And 

VOL     II.  18 


274  COMMENTARIES   ON   SALES.  [BOOK   IV. 

court  held  that  where  anything  is  received,  upon  agreement,  in 
reduction  of  a  debt,  that  is  a  payment  sufficient  to  take  the  case 
out  of  the  Statute  of  Limitations. 

In  Mabcr  v.  Maber  ^  it  was  held,  that  to  constitute  a  payment 
of  interest  to  take  a  debt  out  of  the  operation  of  the  Statute  of 
Limitations,  it  is  not  essential  that  money  should  actually  pass 
between  the  debtor  and  creditor.  There,  after  a  debt  due  to  the 
plaintiff  from  his  son  had  been  barred  by  the  statute,  the  plaintiff, 
his  son,  and  his  son's  wife,  had  an  interview  at  which  the  interest 
due  was  calculated.  The  plaintiff's  son  then  put  his  hand  into 
his  pocket,  as  if  to  get  out  the  money  to  pay  it.  The  plaintiff 
stopped  him,  and  writing  a  receipt  for  the  interest,  gave  it  to  his 
son's  wife,  saying  that  he  would  make  her  a  present  of  the  money. 
No  money  actually  passed  between  the  parties.  It  was  held, 
Bramwell,  B.,  dissenting,  that  this  transaction  was  a  sufficient 
payment  to  take  the  debt  out  of  the  Statute  of  Limitations.^ 

So,  under  a  special  act,  where  churchwardens  were  authorized 
to  borrow  money,  work  done  for  them  was  treated  as  equivalent 
to  a  loan  ;  the  court  holding  that  where  parties  agree  that  a  trans- 
action shall  have  the  same  result  as  would  exist  if  money  had 
passed  and  repassed  from  one  to  the  other,  such  agreement  will  be 
enforced  as  in  the  case  where  the  respective  payments  had  actually 
been  made.^ 

1  L.  K.  2  Ex.  153.  Ormond,  17  Q.  B.  423,  board  and  lodging 

2  See,  also,  Ashby  v.  James,  11  M.  &  were  treated  as  a  money  payment.  See 
W.  542  ;  Amos  v.  Smith,  1  H.  &  C.  238;  Worthington  v.  Grimsditch,  7  Q.  B.  479  ; 
Bodger  v.  Arch,  10  Ex.  333.  Callander  v.  Howard,  10  C.  B.  290;  Bevau 

3  Eegina  v.  Churchwardens  of  St.  Mi-  v.  Gething;  3  Q.  B.  740  ;  Chamberlyn  v. 
chael,  6  E.  &  K  807.     And  in  Blair  v.  Delarive,  2  Wils.  353. 


PART  V.J 


EARNEST  OR  PART  PAYMENT. 


275 


BOOK     tv. 


PART  V. 


EARNEST     OR    PART    PAYMENT. 


Closely  akin  to  the  subject  we  have  been  just  considering  is 
the  provision  in  the  statute  that  the  contract  for  the  sale  of  goods, 
wares,  and  merchandises,  for  the  price  of  XIO  or  upwards,  shall 
be  good  if  the  buyer  shall  "  give  something  in  earnest  to  bind  the 
bargain,  or  in  part  payment."  And  many  of  the  cases  we  have 
cited  in  connection  with  the  preceding  section,  to  show  that  an 
exchange  or  barter  comes  within  the  meaning  of  the  word  "  sale  "  in 
the  statute,  are  equally  applicable  to  show  that  goods  as  well  as 
money  may  be  given  in  earnest  or  part  payment  to  bind  the  bar- 
gain.^  The  very  term  in  the  section  "  give  something  in  earnest 
to  bind  the  bargain,  or  in  part  payment,"  implies  this.^ 


1  See  Louden  v.  Birt,  4  Ind.  566,  570  ; 
Moore  v.  Stadden,  Wright  (Ohio),  88  ; 
Willard  v.  Germer,  1  Sandf.  50  ;  Tilford 
V.  Roberts,  8  Ind.  254  ;  Kuhn  v.  Gates, 
92  Ind.  66  ;  Weir  v.  Hudnut,  115  Ind. 
525  ;  Hunter  v.  Wetsell,  84  N.  Y.  549  ; 
Sharp  V.  Carroll,  66  Wis.  62  ;  Walker  v. 
Nussev,  16  M.  &  W.  302  ;  Kearslake  v. 
Morgan,  5  T.  R.  513. 

2  See  ante,  p.  272  and  note  4.  In  Bach 
V.  Owen,  5  T.  K.  409,  "  to  make  the  agree- 
ment the  more  firm  and  binding,"  one 
half-penny  was  paid  "in  earnest  of  the 
bargain."  In  Goodall  v.  Skelton,  2  H. 
Bl.  316,  a  shilling  earnest  was  paid  ; 
and  in  Blakey  v.  Dinsdale,  2  Cowp.  661, 
the  earnest-money  paid  to  bind  the  bar- 
gain was  again  a  half-penny.  In  Evans 
V.  Roberts,  5  B.  &  C.  829,  the  earnest- 
money  was  a  shilling.  In  Blekinsop  v. 
Clayton,  7  Taunt.  597,  the  vendor's  ser- 
vant, on  the  contract  for  the  sale  of  a 
horse  for  £45,  took  a  shilling  from  his 
pocket,  and  drew  it  across  the  palm  of  the 
vendee's  hand,  and  replaced  the  shilling  in 
his  own  pocket.  It  was  held  that  as  tliere 
was  no  payment,  or  transfer  of  the  shilling 
even  for  a  moment,  no  earnest-money  was 
given.  This,  by  the  reporter  of  the  case, 
and  by  the  text-books  generally,  is  treated 


as  though  the  act  had  been  that  of  the 
purchaser  instead  of  that  of  the  vendor's 
servant.  It  was  sought  to  treat  the  act  as 
a  local  custom,  as  equivalent  to  a  part  pay- 
ment or  eai'nest  ;  but  it  is  obvious  that,  in 
no  respect  did  it  meet  the  requirements  of 
the  statute.  The  act,  such  as  it  was,  was 
not  that  of  the  vendee,  who  is  to  give  the 
earnest-money  or  part  payment ;  and  there 
■was,  in  fact,  no  giving  at  all.  In  Weir  v. 
Hudnut,  115  Ind.  525,  the  use  of  sacks 
for  the  sacking  of  corn  was  held,  as  a  re- 
duction in  the  price  of  the  corn  from  such 
use  of  the  sacks,  to  be  good  as  a  payment 
in  earnest  or  part  payment  to  bind  the 
bargain.  What  the  parties  agree  shall 
constitute  payment,  the  law  will  adjudge 
to  be  payment.  It  is  competent  for  parties 
to  designate  by  their  contiact  how  and  in 
what  payment  may  be  made.  It  is  by  no 
means  true  that  payment  can  only  be  made 
in  money.  It  may  be  made  in  property  or 
in  services  ;  or,  in  short,  whatever  tiie  j)ar- 
ties  agree  shall  constitute  payment  will  be 
regarded  by  the  courts  as  jiayment,  pro- 
vided the  thing  agieed  upon  is  of  some 
value.  Kuhn  v.  Gates,  92  Ind.  66  ;  Til- 
ford  V.  Roberts,  8  Ind.  254.  It  has  been 
held  in  many  cases  that  ])aymcnt  in  arti- 
cles of  property  will  bind  the  bargain  and 


27G 


COMMENTARIES   ON   SALES. 


[book  IV. 


Beniamhi  ^  seeks  to  maintain  a  distinction  between  money  paid  as 
earnest  and  as  a  part-payment,  on  the  ground  that  earnest  is  paid 

prevent   the   operation   of   the  statute  of 
IVaiuls.     Sharp   v.   Carroll,  66  Wis.   62  ; 


Phillips  V.  Dcmulgee  Mills,  55  Ga.  633  ; 
Hunter  v.  W'etsuli,  Si  N.  Y.  549  ;  Combs 
V.  Bateman,  10  Barb.  573  ;  Louden  v.  Birt, 
4  lad.  566.  In  White  v.  Drew,  56*How. 
Pr.  52,  it  was  held  that  the  giving  of  val- 
uable iuforiiiatiou  was  as  efleetive  to  take 
the  case  out  of  the  statute  of  frauds  as  if  a 
cash  payment  had  been  made.  In  Combs 
V.  Batenian,  10  Barb.  573,  the  distinction 
is  taken  between  a  promissory  note  being 
given  to  bind  the  bargain,  as  between  the 
vendee's  own  note  and  that  of  a  third 
party.  The  case  was  an  exchange  of  a 
span  of  horses  for  two  yoke  of  oxen  and  a 
note  for  .§20.  The  note  was  delivered. 
The  New  York  statute  differs  in  phraseol- 
ogy from  the  2;)  Chas.  2,  but,  under  an 
act  providing  that  the  vendee  must  give 
"  something  as  earnest  to  bind  the  bargain, 
or  in  part  payment,"  we  think  the  ven- 
dee's own  promissory  note  would  meet  the 
requirements  of  the  section  ;  particularly 
where,  under  the  contract,  as  in  Combs  v. 
Bateraan,  it  was  one  of  the  terms  of  the 
contract  that  the  party's  own  promissory 
note  was  to  be  taken  as  a  part  of  the  con- 
sideration for  the  horses.  See  Griffiths  v. 
Owen,  13  M.  &  W.  53,  64.  There  is  an 
additional  point,  not  noticed  in  Combs  v. 
Bateman,  10  Barb.  573,  which  would  seem 
to  have  been  sufHeient  to  take  the  case  out 
of  the  statute.  Under  the  New  York  stat- 
ute (2  R.  S.  70,  §  3),  "  things  in  action  " 
are  included  with  goods  and  chattels  as 
the  subjects  of  sale,  within  the  statute,  the 
delivery  of  which  takes  the  case  out  of  the 
statute.  In  Combs  v.  Bateman,  10  Barb. 
573,  there  clearlj''  was  the  sale,  or  what  was 
equivalent  to  it,  an  exchange,  and  the  de- 
livery of  a  thing  in  action,  under  the  con- 
tract, sufficient  to  take  the  case  out  of  the 
statute.  In  Krohn  v.  Bantz,  68  Ind.  277, 
it  is  held  that  the  vendee's  promissory  note 
is  neither  earnest  nor  part  payment  to  take 
an  oral  sale  of  goods  out  of  the  statute. 
We  are  not  much  impressed  with  the  con- 
clusiveness of  the  reasoning  in  this  case. 
The  court  say  that  the  part  payment  or 
earnest  must  be  something  of  some  value, 
and  that  the  note  is  of  no  value  because  it 
has  no  consideration  to  su[)port  it,  the  sale 
being  invalid.  The  case  seems  to  some 
extent  to  rest  on  the  fact  that  the  note 
did  not  appear  to  be  a  negotiable  note 
within  the  statute  of  Anne,  or,  as  the 
court  call  it,  not  ' '  governed  by  the  law 
merchant."  The  case  may,  on  that  ground, 
be  distinguished.     But  iu  the  case  of  a 


negotiable  note  in  the  hands  of  a  third 
party,  without  notice,  consideration  is  im- 
plied ;  and,  therefore,  the  note  would  be 
assumed  to  be  of  value.  And  if  the  deliv- 
ery of  the  note  is,  under  the  statute,  the 
giving  of  "something  in  earnest  to  bind 
the  bargain,  or  in  part  payment,"  then 
there  is  a  consideration  to  support  it,  even 
in  the  hands  of  the  vendor.  Where  a  sale 
of  goods  is  made,  the  consideration  for 
which  is,  expressly,  the  promissory  note 
of  the  vendee,  the  delivery  of  the  very 
thing  —  a  chose  in  action  —  which  is 
the  express  consideration  of  the  sale,  and 
which  is  itself  the  subject  of  a  sale,  would 
seem  to  us  to  be,  without  question,  the 
delivery  of  something  in  earnest  to  bind 
the  bargain  or  in  part-payment.  So  far, 
in  fact,  is  it  payment,  that  on  its  receipt, 
and  delivery  of  the  goods,  action  for  the 
goods  is  suspended  until  after  its  maturity 
and  dishonor.  And  even  after  its  matur- 
ity and  dishonor  an  action  will  not  then 
lie  for  the  goods  as  long  as  the  dishonored 
note  is  outstanding  in  the  hands  of  a  third 
party.  To  that  extent  it  is  as  a  payment 
between  the  original  parties.  Scott  v. 
Bush,  26  Mich.  418,  is  cited  to  sustain  the 
holding  in  Krohn  v.  Bantz,  68  Ind.  277. 
But  Scott  V.  Bush  was  the  case  of  an  oral 
agreement  for  the  sale  of  lands,  and  held 
to  be  invalid,  and,  therefore,  money  paid 
under  the  void  agreement  was  held  to  be 
recoverable  back  again,  the  contract  being 
a  mere  nullity.  Chamberlain  v.  Dow,  10 
Mich.  319  ;  Hall  v.  Soule,  11  Mich.  494  ; 
Holland  v.  Hoyt,  14  Mich.  238  ;  Grimes 
V.  Van  Vechten,  20  Mich.  410;  Rice  v. 
Peet,  15  Johns.  503  ;  Thayer  v.  Rock,  13 
Wend.  53  ;  Duncan  v.  Baird,  8  Dana,  101. 
But  there,  of  course,  the  part  payment 
would  not  take  the  case  out  of  the  statute, 
so  there  was  no  question  as  to  what  would 
constitute  a  part  payment.  Hooker  v. 
Knab,  26  Wis.  511,  is  also  relied  on  in 
Krohn  v.  Bantz,  68  Ind.  277.  But 
Hooker  v.  Knab,  26  Wis.  811,  was  a  gam- 
ing contract  for  wheat,  there  being  no 
written  note  or  memorandum,  no  part  de- 
livery, nor  any  part  of  the  purchase-money 
paid.  The  contract  was  absolutely  void 
under  the  statute  of  frauds,  and  was  so 
treated  by  the  court.  A  promissory  note 
was  given  some  six  months  after  the  con- 
tract, not  as  earnest  or  part  payment  to 
bind  the  contract,  but  in  payment  of  a 
part  of  the  "  difference  "  arising  out  of  the 
gaming  contract.  The  contract  itself  hav- 
ing been  a  nullity,  and  the  promissory 
note  not  having  been  given  to  bind  the 


Benj.  on  Sales,  §  189. 


PART   v.] 


EARNEST   OR   PART   PAYMENT. 


277 


to  bind  the  bargain,  while  part  payment  is  only  made  after  the 
bargain  has  been  made  or  bound.     The  distinction,  however,  we 


original  contract,  but  merely  to  meet  the 
consequences  of  a  past  invalid  contract, 
was  very  correctly  held,  as  between  the 
original  parties,  invalid  lor  want  ot  con- 
sideration. The  court  said  :  "The  parol 
agreement  in  respect  of  the  sale  of  the 
wheat,  however  binding  it  might  be  in 
honor,  did  not  create  any  legal  responsi- 
bility. In  Frey  v.  The  City  of  Fond  dii 
Lac,  24  Wis.  204,  207,  Mr.  Justice  Paine 
says  :  '  It  is  a  general  rule  that  a  promise 
to  pay  for  a  past  consideration,  for  which 
there  is  not  and  never  has  been  any  legal 
liability  on  the  part  of  the  party  promis- 
ing, does  not  make  a  contract  binding  in 
law.  It  is  placed  upon  the  same  footing 
with  a  promise  which  does  not  purport  to 
be  for  any  consideration  whatever.'  "  So 
Krohn  v.  Bantz,  68  Ind.  277,  so  far  as  it 
can  be  considered  as  hohling  that  the  de- 
livery of  the  vendee's  negotiable  note  is 
not  the  giving  of  something  in  earnest  or 
part  payment  to  take  an  oral  sale  of 
goods  out  of  the  statute,  is  not  supported 
by  Hooker  v.  Knab,  26  Wis.  511,  or  Scott 
V.  Bush,  26  Mich.  418.  In  New  York, 
there  is  not  only  the  distinction  we  have 
pointed  out,  that  the  words  "giving  some- 
thing in  earnest  "  have  been  omitted  from 
their  statute,  but  the  words  "  at  the  time  " 
are  inserted  in  the  statute.  We  think, 
however,  in  principle  it  is  clear,  where  a  sale 
is  made  of  goods,  payable  in  the  vendee's 
negotiable  pi-omissory  note,  and  the  note  is 
delivered,  that  that  is  such  a  conditional 
payment,  even  "  at  the  time  "  of  the  mak- 
ing of  the  contract,  as  to  take  the  case  out 
of  the  statute.  It  is  not,  as  the  assumed 
non-negotiable  note  in  Krohn  v.  Bantz,  68 
Ind.  277,  was  considered  to  be,  a  mere 
]>romise  to  make  a  payment  at  a  later 
date  ;  but  meets  the  requirements  of  the 
statute,  as  a  delivery  of  something  of 
value ;  a  chose  in  action  which  is  itself 
the  subject  of  a  sale,  and  which,  as  we 
have  seen,  is,  under  the  New  York  statute 
of  frauds,  expressly  brought  within  the 
purview  of  that  statute. 

In  Parsons  on  Notes  and  Bills  (vol.  ii. 
p.  206),  it  is  said:  "A  bill,  check,  or 
note  has  been  held  to  be  earnest  or  part 
payment  under  the  17th  section  of  the 
statute  of  frauds  ;"  but  no  case  is  cited 
to  sustain  such  alleged  holding.  And  in 
Chitty  on  Contracts  (7th  Eng.  ed.  377): 
"The  delivery  of  a  bill  of  exchange  or 
promi.ssory  note,  on  account  or  in  pay- 
ment of  the  price  of  goods  sold  under  a 
parol  contract,  will  take  the  case  out  of 
the  statute,  such  instniment  amounting 
to  payment  till  dishonored."  So,  in  10 
Petersd.   Ab.    129,  n.,  it  is  said:    "The 


delivery  of  a  bill  of  exchange  or  promis- 
sory note  in  part  payment  would  take  the 
case  out  of  the  statute."  And  in  Griffiths 
V.  Owen,  13  M.  &  W.  58,  64,  Pollock, 
C.  B.,  states  it  as  undoubtedly  established, 
that,  in  case  of  a  money  demand,  if  the 
creditor  accepts  a  promissory  note,  or  an 
order  for  the  payment  of  money,  on  ac- 
count of  the  debt,  that  is  a  sort  of  quali- 
fied or  conditional  payment,  and  may  be 
so  pleaded.  See  Kearslake  v.  Morgan,  5 
T.  R.  513.  In  Combs  v.  Bateman,  10 
Barb.  573,  575,  the  court,  quoting  from 
Chitty  on  Contracts,  as  above,  say:  "This 
doubtless  refers  to  a  bill  of  exchange  or 
promissory  note  of  a  third  i)erson,  and  not 
of  the  purchaser.  The  delivery  of  the  note 
of  the  purchaser  can  in  no  sense  be  said 
to  be  a  payment.  It  may  suspend  the 
right  of  action  of  the  seller  for  the  pur- 
chase money  until  the  maturity  of  the 
note,  but  the  absolute  liability  of  the  pur- 
chaser remains.  Not  so,  however,  in  all 
cases  of  the  delivery  of  the  obligation  of  a 
third  person.  That,  when  agreed  to  be 
taken  in  satisfaction,  is  an  absolute  pay- 
ment, and  in  all  cases  the  purchaser's  lia- 
bility is  contingent."  But  Chitty  makes 
neither  of  these  qualifications.  He  neither 
confines  the  case  to  that  of  a  bill  of  ex- 
change or  promissory  note  of  a  third  per- 
son, nor  to  the  case  where  the  note  or  bill 
of  a  third  person  is  "agreed  to  be  taken 
in  satisfaction."  And  his  reason  as  much 
applies  to  the  case  of  a  note  or  bill  of  the 
vendee  as  to  that  of  a  third  person,  such 
instrument  "a:uounting  to  payment  till 
dishonored,"  or,  as  Cliief  Baron  Pollock 
calls  it,  "a  sort  of  qualified  or  conditional 
payment ;"  i.  e.,  in  the  one  case  as  much 
as  in  the  other,  suspending  the  right  of 
action  till  dishonor.  The  language  of 
Pollock,  C.  B.,  clearly  implies  that  the 
"promissory  note,  or  an  order  for  the  pay- 
ment of  the  money,"  may  be  that  of  the 
party  who  gives  the  note  or  f/ie  order  for 
the  payment. 

In  Richardson  v.  Kickman,  B.  R. 
Mich.,  16  Geo.  3,  cited  in  Kearslake  v. 
Morgan,  5  T.  R.  513,  517,  it  was  held 
that  a  plea,  in  an  action  for  goods  sold 
and  delivered,  of  the  delivery  of  the  ven- 
dee's bill  on  a  third  party  to  the  vendors, 
on  which  the  vendees  remained  liable,  was 
good  ;  even  though  a  bill  of  exciiange, 
unless  there  is  an  agreement  that  it  shall 
be  so,  is  not  satisfaction.  So,  in  Kears- 
lake V.  Morgan,  5  T.  R.  513,  in  a.ssumpsit 
for  goods  sold  and  delivered,  the  delivery 
of  the  promissory  note  of  a  thiid  party  in 
favor  of  the  defendant,  and  indorsed  by 
him  to  the  plaintiff,  was  held  to  be  a  good 


278 


COMMENTARIES   ON   SALES. 


[book  IV. 


think,  is  even  finer  than  the  nice  legal  distinction  sometimes  sought 
to  be  made  between  a  sale  and  a  barter  or  exchange,  which,  as  we 


conditional  payment,  although  not  an  ac- 
tual extinguishment  of  the  debt.  See  also 
Taple}^  V.  Mai-tems,  8  T.  R.  451 ;  Louviere 
V.  Laiibray.  10  Mod.  36.  In  Chamberlyn 
V.  Delarive,  2  Wils.  393,  in  an  action 
for  work  and  labor,  the  evidence  showed 
that  the  defendant  had  given  his  own 
di-aft  on  a  third  person  to  the  plaintiff 
for  the  amount  of  the  claim  ;  and  the 
court,  witliout  deciding  whether  or  not  the 
instrument  was  a  bill  of  exchange  or  nego- 
tiable, held  that  this  was  a  qualified  pay- 
ment, which  became  an  absolute  payment 
when  the  amount  of  it  was  lost,  through 
the  laches  of  the  plaintiff,  on  the  failure 
of  the  drawee.  So,  in  Burney  v.  Poyntz, 
4  B.  &  Ad.  568,  where  the  vendee  gave 
his  own  promissory  note  to  the  vendor's 
agent  for  hay,  this  was  held  to  be  substan- 
tially a  payment,  which  destroyed  the 
vendor's  lien  on  the  hay  for  the  purchase- 
money.  This  case  we  consider  in  effect 
an  express  authority  that  the  giving  of  his 
own  promissory  note  by  the  vendee  to  the 
vendor  will  take  the  case  out  of  the  stat- 
ute, as  the  giving  of  something  in  earnest 
or  in  part  payment.  And  see  Horncastle 
V.  Farran,  3  B.  &  Aid.  497, —  another 
case  of  the  destruction  of  a  lien  by  the 
acceptance  of  a  bill  of  exchange. 

Where  a  note  or  bill  is  taken  in  full 
satisfaction  and  discharge  of  a  debt,  the 
remedy  is  solely  on  the  note  or  bill,  the 
right  of  action  on  the  original  cause 
of  action  being  extinguished.  Sard  v. 
Rhodes,  1  M.  &  VV.  153;  Frisbie  v.  Larned, 
21  Wend.  451;  Peters.  Beverley,  10  Pet. 
534,  568  ;  Lewis  v.  Lyster,  2  C.  M.  &  R. 
704.  But  where,  as  in  Kearslake  v.  Mor- 
gan, 5  T.  R.  513,  it  is  taken  "  for  and  on 
account  of"  the  original  debt,  and  not  in 
full  satisfaction  and  discharge  of  it,  as  it 
may  be  if  the  parties  so  agree,  on  the  dis- 
honor of  the  note  or  bill  the  original  cause 
of  action  revives.  In  the  one  case  it  is  an 
absolute  payment ;  in  the  other,  a  quali- 
fied or  conditional  payment.  See  Herring 
V.  Sanger,  3  Johns.  Cas.  71;  Chapman  v. 
Steinmetz,  1  Ball.  261;  Tyson  v.  Pollock, 

1  Penn.  375,  381  ;  Dayton  v.  Trull,  23 
Wend.  345  ;  Tobey  v.  Barber,  5  Johns. 
68  ;  Johnson  v.  Weed,  9  Johns.  310 ; 
Woodcock  V.  Bennett,  1  Cow.  711;  Sheey 
V.  Mandeville,  6  Cranch,  253  ;  Newell  v. 
Hussev.  6  Shep.  249;  McGinn  v.  Holmes, 

2  Watts,  121;  Bill  v.  Porter,  9  Conn.  23  ; 
Cave  V.  Hall,  5  Mo.  59.  In  either  case,  we 
think,  it  is  clearly  a  giving  of  something 
in  earnest  to  bind  the  bargain,  or  in  part 
payment  to  satisfy  the  17th  section  of  the 
statute.  In  Clark  v.  Mundal,  1  Salk.  124, 
it  was  held,  that  if  A.  sell  goods  to  B., 


and  B.  is  to  give  a  bill  in  satisfaction, 
B.  is  discharged  though  the  bill  is  never 
paid,  "for  the  bill  is  payment," — abso- 
lute if  received  in  satisfaction;  conditional 
payment  if  not  received  in  full  satislaction 
and  discharge.  By  3  &  4  Anne,  e.  9,  §  7, 
a  bill  of  exchange  received  for  a  debt  was 
made  "a  full  and  complete  payment  of 
such  debt"  where  there  were  laches  by 
the  holder.  So,  in  New  York,  in  Waydell 
V.  Luer,  3  Den.  410,  it  was  held,  where  a 
member  of  a  co-partnership  gave  his  own 
promissory  note  for  a  debt  of  the  tirm,  as 
payment  and  in  satisfaction  of  the  debt, 
it  extinguished  the  original  indebtedness. 
In  Ireland  v.  Johnson,  28  How.  Pr.  463, 
18  Abb.  Pr.  392,  the  decision  in  Combs  v. 
Bateman,  10  Barb.  574,  is  followed  by 
Prindle,  county  judge,  who  held,  revers- 
ing the  decision  of  the  Justice's  Court, 
that  where  a  sale  of  a  machine  was  made, 
for  which,  as  the  express  condition  of  the 
sale,  the  vendee's  promissory  note  was  to 
be  taken,  which  was  given  and  received, 
this  did  not  take  the  case  out  of  the  stat- 
ute. The  county  judge  rested  his  judg- 
ment on  two  grounds :  ( 1 )  that  the 
promissory  note  was  only  a  promise,  and 
amounted  to  no  more  than  a  promise  by 
the  vendee  to  give  credit  on  his  books  to 
the  vendor  for  a  previous  indebtedness ; 
and  (2)  that,  as  the  note  was  not  an  ab- 
solute extinguishment  of  the  debt,  there- 
fore it  was  not  a  payment  of  it.  But  a 
negotiable  promissory  note  is  more  than 
a  mere  promise.  It  is  an  assignable  chose 
in  action ;  a  commercial  commodity ;  the 
subject  of  a  sale  ;  and,  in  the  New  York 
statute,  is  classed  with  goods  and  chattels 
as  the  subject  of  a  sale  equally  with  them, 
and  requiring,  to  consummate  the  sale, 
the  same  kind  of  evidence.  Besides,  it 
was  the  identical  thing  which  was  agreed 
upon  as  the  consideration  for  the  sale  of 
the  machine,  and  was,  unquestionably,  a 
valid  consideration  for  such  sale.  And 
while  it  is  not,  as  payment,  an  absolute 
extinguishment  of  the  debt,  neither  is  the 
negotiable  note  or  bill  of  exchange  of  a 
third  party,  unless  under  facts  which  show 
that  it  has  been  received  as  such.  Kears- 
lake V.  Morgan,  5  T.  R.  513;  Va.steen- 
burgh  V.  Hoffman,  ]  5  Barb.  28  ;  Burdick 
V.  Green,  15  Johns.  247  ;  Hughes  v. 
Wheeler,  8  Cow.  77;  Conro  v.  Port  Henry 
Co.,  12  Barb.  27;  Waydell  v.  Luer,  3 
Den.  410,  and  other  authorities  cited  by 
us  above.  But  it  is,  in  the  one  case  as  in 
the  other,  a  qualified  or  conditional  pay- 
ment, suspending  the  original  cause  of 
action,  and  entirely  extinguishing  it,  and 
becoming  an  absolute  payment  of  such 


PART   v.] 


EARNEST   OR   PART   PAYMENT. 


279 


have  shown,^  has  practically  no  existence.     But  earnest  money 
was  never  paid  until  the  bargain  had  been  made ;   and,  unless 


original  cause  of  action,  on  the  due  pay- 
ment of  the  note  or  bill  at  niaturitj'.  We 
think  it  is  obvious  that  the  giving  of  tiie 
vendee's  own  negotiable  note  or  bill  of 
exchange,  or  that  of  a  third  party,  to  the 
vendor,  and  accepted  by  him  for  and  in 
consideration  of  goods  sold,  is  a  giving  of 
something  in  earnest  or  part  payment  to 
take  the  case  out  of  the  statute  ;  and  that 
the  few  cases  in  this  country  which  hold 
otherwise  are  decided  on  unsouml  grounds, 
and,  on  principle  as  well  as  on  the  weight 
of  authority,  cannot,  we  think,  be  sus- 
tained. 

The  vendee's  giving  another's  promis- 
sory note  would  be  giving  but  another's 
promise  to  pay  something  in  the  future  ; 
or  his  giving  another's  bill  of  exchange 
would  be  only  giving  the  order  of  another 
to  pay  something  in  the  future,  and  his 
check  would  be  simply  a  direction  to 
others  to  pay  something.  If  giving  his 
own  negotiable  note,  or  his  owu  bill  of 
exchange,  would  not  be  such  a  payment 
as  would  take  the  case  out  of  even  such  a 
statute  as  the  Kew  York  statute  of  frauds, 
because  it  is  merely  his  promise  or  order 
to  pay  something  in  the  future,  and  not 
actual  absolute  payment  itself ;  giving  an- 
other's promissory  note,  or  another's  bill 
of  exchange,  would  be  no  better  an  actual 
payment  "made  at  the  time ; "  as  it  would 
be  not  only  an  order  or  promise  to  jiay 
something  in  the  future ;  but,  as  the  act  of 
a  third  party,  it  would  be  really  one  de- 
gi'ee  further  removed  from  the  giving 
something  in  earnest,  or  in  part  payment, 
by  the  vendee,  than  his  own  promissory 
note  or  bill  of  exchange  itself  would  be. 
We  think  the  position  that  the  promissory 
note  or  bill  of  exchange  of  tihe  vendee, 
delivered  by  him  and  accepted  by  the  ven- 
dor, as  a  quasi  or  conditional  or  qualified 
payment,  will  not  take  the  case  out  of  the 
statute  of  frauds,  is  entirely  untenable. 
As  before  intimated,  such  a  payment 
would  usually  be  an  exact  fulfilment  of 
the  very  terms  of  the  contract  of  sale  ; 
and  when  the  note  or  bill  is  paid,  deliv- 
ered, and  received,  as  the  agreed  condi- 
tional payment  for  the  goods,  we  think  it 
would  as  effectually  take  the  case  out  of 
the  statute  as  it  would  suspend  the  right 
of  action  on  the  original  contract. 

In  Organ  v.  Stewart,  60  N.  Y.  413, 
where  there  was  a  payment  made  on  ac- 
count of  a  purchase  of  wool,  the  payment 
being  made  concurrently  with  a  new  pur- 
chase of  wool,  it  was  thought  to  engraft 
upon  the  original  contract  the  new  pur- 


chase, so  as  to  make  the  payment  on  the 
first  contract  a  jiaymeut  to  take  the  second 
out  of  the  statute  of  frauds.  But  the 
court  held  that,  although  the  purchasers 
jiaid  their  indebtedness  for  the  wool  first 
pui-chased  in  consequence  of  the  new 
agreement,  this  was  not  a  payment  on  the 
new  contract ;  the  payment,  under  the 
statute,  to  validate  a  contract,  must  be 
the  paj'ment  of  a  part  of  the  purchase- 
price  of  the  goods  sold  by  the  contract 
sought  to  be  enforced.  In  this  case  the 
vendors  only  consented  to  sell  the  second 
lot  of  wool  on  condition  that  they  were 
paid  for  the  first  lot.  They  were  paid  for 
the  first  lot,  but  the  jiayment  for  that  was 
not  the  giving  anything  in  part  pajment 
for  the  second  lot,  the  payment  for  the 
first  lot  forming  no  part  of  the  payment 
for  the  second,  but  was  simply  a  payment  in 
full  of  the  exact  amount  due  for  the  first 
lot,  so  that,  had  the  second  lot  been  de- 
livered, the  entire  purchase-money  of  that 
lot  would  have  remained  unpaid,  showing 
that  no  part  of  it  had  been  paid.  But  in 
Allen  V.  Aguirre,  7  N.  Y.  543,  W'here  the 
defendants  sold  the  plaintiff  a  quantity  of 
damaged  raisins  by  verbal  agreement,  the 
plaintiffs  paying  for  the  raisins  and  re- 
ceiving them ;  the  plaintiffs  to  have  the 
benefit  of,  and  to  be  paid  by  the  defend- 
ants, the  amount  of  such  return  duties  as 
the  government  should  allow  the  defend- 
ants. The  defendants  received  $862.51 
from  the  government  for  return  duties, 
which  they  refused  to  pay  to  the  plain- 
titt's,  alleging  that  the  contract  was  within 
the  2sew  York  statute  of  frauds,  as  the 
sale  of  a  thing  in  action  within  the  mean- 
ing of  the  statute.  But  the  court  held 
that  the  agreement  for  the  reduction  of 
the  return  duties  was,  in  effect,  that  the 
return  duties  were  to  be  a  part  of  the  price 
of  the  raisins,  and  that  the  delivery  of  the 
raisins  took  the  case  out  of  the  statute. 
On  another  ground,  too,  which  was  the 
verj'  ground  taken  by  the  tlefendants  for 
seeking  to  avoid  the  return  of  the  duties 
to  the  plaintiffs,  the  decision  was  correct. 
If  the  purchase  of  the  raisins  and  of  the 
right  to  the  return  duties  was,  as  was  in 
efi'ect  claimed  by  the  defendants,  a  pur- 
chase of  goods  and  a  right  of  action,  the 
price  paid  was  for  both  of  these ;  and  as  the 
sale  of  goods  and  things  in  action  are  alike 
within  the  very  terms  of  the  New  York 
statute,  the  payment  itself,  independent 
of  the  delivery, 'was  sufficient  to  take  the 
case  out  of  the  statute,  as  well  as  to  tlie 
thing  in  action  —  the  right  to  the  return 


1  See  Vol.  I.,  Book  I.,  Parti. 


280 


COMMENTAKIES   ON   SALES. 


[book  IV. 


earnest  money  has  been  paid,  or  one  of  the  other  clauses  of  the 
seventeenth  section  of  the  statute  has  been  acted  on  to  take  the 
case  out  of  the  statute,  the  effect  of  a  imyment^  whether  it  be 
called  "earnest"  or  "part  payment,"  is  to  '■''bind  the  bargain," 
and  without  such  payment,  whether  it  is  called  "  earnest "  or 
"  part  payment,"  there  is  no  bound  contract.  So  the  distinc- 
tion is  purely  imaginary.^ 


of  the  duties  — as  to  the  goods.  Munsell 
V.  Lewis,  2  Denio,  224,  is  in  principle, 
though  not  a  decision  under  the  statute 
of  frauds,  analogous  to  Allen  v.  Aguirre, 
7  N.  Y.  (3  Scld.)  543.  And  see  McFar- 
land  V.  Crary,  6  Wend.  297;  Henry  v. 
Bank  of  Selina,  5  Hill,  523  ;  Wheeler  v. 
McFarland,  2  Denio,  183. 

1  Under  the  statute  of  frauds  the  con- 
tract is  alike  bound  by  whatever  is  given 
or  paid  as  earnest  or  part  payment.  The 
term  giving  something  "in  earnest  to  bind 
the  bargain  "  was  a  colloquialism  in  com- 
mon use  in  England  before  the  enactment 
of  the  statute  of  frauds,  and  was  simply 
introduced  into  the  statute  as  a  term  in 
connection  with  sales  of  personal  property 
then  commonly  in  use.  The  term  "  earn- 
est "  appears  in  Pordage  v.  Cole,  1  Saund. 
319,  which  was  decided  in  20  &  21  Car.  2, 
or  some  nine  years  before  tlie  statute  of 
frauds  was  enacted,  and  is  there  treated  as 
synonymous  with  part  payment.  There 
the  plaintiff  had  given  five  shillings  "as 
an  earnest,"  and  the  action  was  for  the 
residue  of  the  purchase-money ;  that  is, 
£774  15s.  of  the  total  purchase-money  of 
£775.  So,  in  Langfort  v.  Adm.  of  Tiler, 
1  Salk.  113,  where  there  was  a  payment 
of  £50  on  account  of  three  tubs  of  butter 
purchased,  the  payment  of  this  large  por- 
tion of  the  purchase-money  is  called  "  earn- 
est." And  in  Walker  v.  Nussey,  16  M.  & 
W.  302,  where  the  question  was  whether 
there  had  been  a  payment  of  £4  14s.  llfZ. 
on  a  purchase  amounting  to  £20  18s. 
\\d..  Pollock,  C.  B.  (at  p.  304),  and  the 
other  judges  put  the  question  as  to  whether 
what  took  place  amounted  to  "  a  giving  of 
earnest  or  in  part  of  payment,"  treating 
the  terms  as  entirely  synonymous.  In 
Morton  v.  Tibbett,  15  Q.  B.  428,  too,  the 
terms  are  treated  as  being  essentially  the 
same  :  "The  payment  of  any  sum  in  earn- 
est to  bind  the  bargain,  or  in  part  pay- 
ment, is  sufficient.  .  .  .  Part  payment, 
however  minute  the  sum  may  be,  is  suffi- 
cient." In  Bleukinsop  v.  Clayton,  7  Taunt. 
597,  the  terms  are  treated  as  convertible. 
There  the  question  was  whether  a  custom 
well  understood  in  the  north  of  England, 
called  "the  striking  of  the  bargain,"  and 
which  was  closely  akin  to  the  old  common- 
law  practice  in  force  in  England  of  "giv- 


ing something  in  earnest  to  bind  the  bar- 
gain," was  such  a  part  payment  as  complied 
with  the  statute  of  frauds.  There  the  de- 
fendant offered  £45  for  a  horse,  which  the 
plaintiffs  servant  agreed  to  accept ;  and, 
taking  a  shilling  in  his  hand,  drew  the 
edge  of  it  across  the  defendant's  hand,  and 
replaced  the  shilling  in  his  own  pocket, 
which  the  witnesses  called  ' '  striking  off 
the  bargain."  From  the  marginal  note  of 
the  case  this  seems  to  be  treated,  under 
the  local  practice  or  custom  in  the  north 
of  England,  as  though  equivalent  to  the 
giving  of  earnest  money  by  the  purchaser, 
but  the  court  held  that  as  there  never  was 
any  payment  or  transfer  of  the  shilling 
even  for  a  moment,  it  was  not  a  part  pay- 
ment w-ithin  the  statute  ;  that  is,  that  the 
transaction  did  not  amount  to  the  giving 
of  earnest,  or  in  part  payment,  to  satisfy 
the  statute.  In  Howe  v.  Hay  ward,  108 
Mass.  54,  the  parties  made  an  oral  con- 
tract for  the  sale  and  purchase  of  the  stock 
of  a  livery  stable,  and  each  of  them  de- 
posited .§200  in  the  hands  of  a  third  party. 
The  plaintiff  contended  that  the  money 
deposited  by  the  defendant  was  given  in 
earnest  to  bind  the  bargain  or  in  part  pay- 
ment. The  defendant  contended  that  it 
was  under  an  agreement  that  the  sum 
should  be  forfeited  in  case  he  refused  with- 
out just  cause  to  perform  the  contract. 
Tiie  jury  found  that  it  was  not  deposited 
in  earnest  or  in  part  payment,  but  was  de- 
posited as  a  forfeiture  ;  and  under  the  in- 
structions of  the  court,  the  action  being 
for  breach  of  the  contract  to  buy  the  stock, 
they  found  for  the  defendant.  The  plain- 
tiff claimed  that  as  the  money  was  depos- 
ited as  a  forfeiture  it  amounted  to  "  earn- 
est "  within  the  statute  of  frauds.  But 
the  court  held  that  it  was  not  a  part  pay- 
ment, and  as  the  term  "earnest,"  as  used 
in  the  statute  of  frauds,  is  regarded  as  a 
part  payment  of  the  price,  it  was  not, 
therefore,  equivalent  to  an  earnest  to  bind 
the  bargain,  or  part  payment,  and  there 
was  not  a  valid  sale  within  the  statute  of 
frauds. 

Usually  what  was  given  at  the  time  of 
the  sale  under  the  old  English  practice, 
which  was  recognized  in  the  statute,  was 
called  "earnest,"  although,  as  we  have 
seen  by  the  cases  above  cited,  whatever 


PART  v.]  EARNEST  OR  PART  PAYMENT.  281 

Earnest  and  part  payment  were  considered  in  effect  the  same 
even  before  the  statute,  at  common  law.  Thus  Blackstone  says : 
"If  a  man  agrees  with  another  for  goods  at  a  certain  price,  he 
may  not  carry  them  away  before  he  hath  paid  for  them  ;  for  it  is 
no  sale  without  payment,  unless  the  contrary  be  expressly  agreed. 
And  therefore,  if  the  vendor  says,  the  price  of  a  beast  is  four 
pounds,  and  the  vendee  says  he  will  give  four  pounds,  the  bargain 
is  struck ;  and  they  are  neither  of  them  at  liberty  to  be  off,  pro- 
vided immediate  possession  be  tendered  by  the  other  side.  But  if 
neither  the  money  be  paid,  nor  the  goods  delivered,  nor  tender 
made,  nor  any  subsequent  agreement  be  entered  into,  it  is  no  con- 
tract, and  the  owner  may  dispose  of  the  goods  as  he  pleases. 
But  if  any  part  of  the  price  is  paid  down,  if  it  be  but  a  penny, 
or  any  portion  of  the  goods  delivered  by  way  of  earnest  (which 
the  civil  law  calls  arrha,  and  interprets  to  be  ^emptionis  venditioi^is 
contractce  argumentum'),  the  property  of  the  goods  is  absolutely 
bound  by  it ;  and  the  vendee  may  recover  the  goods  by  action,  as 
well  as  the  veudor  may  the  price  of  them.  And  such  regard  does 
the  law  pay  to  earnest  as  an  evidence  of  a  contract,  that,  by  the 
same  statute,  29  Car.  2,  c.  3,  no  contract  for  the  sale  of  goods,  to 
the  value  of  £10,  or  more,  shall  be  valid,  unless  the  buyer  actually 
receives  part  of  the  goods  sold,  by  way  of  earnest  on  his  part ; 
unless  he  gives  part  of  the  price  to  the  vendor  by  way  of  earnest 
to  bind  the  bargain,  or  in  part  of  payment ;  or  unless  some  note 
in  writing  be  made  and  signed  by  the  party,  or  his  agent,  who  is 
to  be  charged  with  the  contract.  Anciently,  among  all  the  north- 
ern nations,  shaking  of  hands  was  held  necessary  to  bind  the 
bargain ;  a  custom  which  we  still  retain  in  many  verbal  contracts. 
A  sale  thus  made  was  called  handsale,  '  venditio  per  miituam  ma- 
nuum  complexionem  ; '  till  in  process  of  time  the  same  word  was 
used  to  signify  the  price  or  earnest,  which  was  given  immediately 
after  the  shaking  of  hands,  or  instead  thereof."  ^ 

was  given  in  earnest  was  equallj'  a  part  it  was  held  a  good  part  payment  under  the 
paj'ment,  and,  as  such,  was  deducted  from  New  York  statute,  and  it,  with  .$2  paid 
the  total  purchase-money.  The  case  of  later  by  the  defendant  to  tlie  plaintiff,  was 
Bissell  V.  Balcom,  39  N.  Y.  275,  well  il-  deducted  from  the  gross  amount  of  the 
lustrates  the  unsoundness  of  the  distinc-  purchase-money.  In  the  New  York  stat- 
tion  Benjamin  has  taken  between  earnest  ute  of  frauds  there  is  no  reference  to  earn- 
and  part  payment.  There  the  plaintiff  est,  but  the  effect  of  any  payment  "to 
orally  sold  the  defendant  cattle  for  $290.  bind  the  bargain,"  if  made,  under  the 
A  day  or  two  after  this  verbal  sale  the  New  York  statute,  "at  the  time"  of  the 
plaintiff  met  the  defendant,  and  wished  bargain,  is  precisely  the  same  as  under 
some  money  from  him,  saying  that  "  it  is  the  English  statute,  where  the  teim  "earn- 
best  that  we  hind  the  bargain,  so  that  est "  is  used  ;  adopted,  as  we  have  seen,  as 
there  will  be  no  chance  to  back  out."  a  colloquialism  in  common  use  in  Kngland 
The  defendant  then  paid  the  plaintiff  $3.  at  the  time  of  the  enactment  of  the  stat- 
While  this  was  expressly  given  "  to  bind  ute,  and,  in  fact,  for  hundreds  of  years 
the  bargain,"  —  the  words  used  in  the  Eng-  prior  to  the  passage  of  the  act. 
lish  statute  in  connection  with  earnest, —  '  2  Bl.  Com.  447. 


282  COMMENTARIES   ON   SALES.  [bOOK   IV. 

Like  very  much  of  our  commercial  law,  earnest  was  derived 
from  the  civil  law.  Pothier  says  of  it,  "  Earnest  is  accustomed  to 
be  «-iven  by  the  buyer  to  the  seller,  in  order  to  serve  as  a  -proof 
that  the  bargain  is  concluded.  And  therefore  Cujas  defines  it, 
quod  ante  pretium  datur,  et  jidem  facit  contractus  facti,  totisque 
pecunice  solvendce.  It  is  not  of  the  essence  of  the  contract  of  sale, 
which  may  be  made  without  the  giving  of  earnest,  since  the 
parties  may  agree  upon  some  other  mode  of  proof  than  that 
which  results  from  earnest.  The  earnest  given  by  the  buyer  some- 
times consists  of  a  sum  of  money  ;  in  which  case  it  is  considered 
to  be  given  on  account  of  and  to  he  deducted  from  the  price  which 
the  buyer  is  obliged  to  pay.  The  people  in  our  province  call  this 
kind  of  earnest  money  of  adieu,  because  it  is  a  piece  of  money 
given  by  the  buyer  to  the  seller  after  having  concluded  the  bargain, 
separate  and  say  adieu.  Sometimes  the  buyer  gives  some  other 
thing  than  money  as  earnest.  The  Romans  had  a  custom  of  giving 
a  ring.  The  seller  in  this  case  has  the  right  to  retain,  as  a  sort  of 
pledge,  the  thing  given  as  earnest,  until  he  is  entirely  paid. 
When  he  has  been  entirely  paid,  he  ought  to  render  it  to  the 
buyer.  The  law  gives  the  buyer,  in  this  case,  an  action  for  a 
recovery  of  the  earnest."  ^ 

Our  own  old  common-law  writers  are  to  the  same  effect.  Noy, 
who  wrote  in  the  beginning  of  the  seventeenth  century,  says,  "  If 
the  bargain  be,  that  you  shall  give  me  ten  pounds  for  my  horse, 
and  you  give  me  one  penny  in  earnest,  which  I  accept,  this  is 
a  perfect  bargain ;  you  shall  have  the  horse  by  an  action  on  the 
case,  and  I  shall  have  the  money  by  an  action  of  debt."  ^ 

A  much  earlier  common-law  writer,  who  wrote  in  the  thir- 
teenth century,  says,  "  A  purchase  and  sale  is  contracted  when 
the  price  has  been  agreed  upon  between  the  parties  contracting, 
provided  that  something  has  been  received  by  the  vendor  in  the 
name  of  earnest ;  for  what  is  received  in  the  name  of  earnest  is  an 
argument  of  a  contract  for  purchase  and  sale.     And  if  a  writing 

1  Pothier  on  Sales,  p.  6,  c.  1,  pi.  506,507.  agreement  into  my  possession,  where  no 

2  Key's  Max.,  c.  42.  "If  a  man  by  money  is  paid,  earnest  given,  or  day  set 
word  of  mouth  sell  to  me  his  horse,  or  for  the  payment,  —  in  all  these  cases  there 
any  other  thing,  and  I  give  him,  or  prom-  is  a  good  bargain  and  sale  of  the  thing  to 
ise  him  nothing  for  it,  this  is  void,  and  alter  the  property  thereof ;  and  in  the  finst 
will  not  alter  the  property  of  the  thing  case  I  may  have  an  action  for  the  thing, 
sold.  But  if  one  sell  me  a  horse,  or  any  and  the  seller  for  his  money  ;  in  the  sec- 
other  thing,  for  money,  or  any  other  valua-  ond  case  1  may  sue  for  and  recover  the 
ble  consideration,  and  the  same  thing  is  thing  bought ;  in  the  third  I  may  sue  for 
to  be  delivered  to  me  at  a  certain  day,  the  thing  bought,  and  the  seller  for  the 
and  by  our  agreement  a  day  is  set  for  the  residue  of  the  money;  in  the  fourth  case, 
payment  of  the  money,  or  all  or  part  of  where  earnest  is  given,  we  may  have  re- 
the  money  is  paid  in  hand,  or  I  give  earn-  ciprocal  remedies,  one  against  another  ; 
est  money  (although  it  be  but  a  penny)  to  and  in  the  last  case  the  seller  may  sue  for 
the  seller,  or  I  take  the  thing  bought  by  his  money."    Sheppard's  Touchstone,  224. 


PART  v.]  EARNEST  OR  PART  PAYMENT.  283 

ought  to  intervene,  the  purchase  and  sale  will  not  be  perfect, 
except  when  it  shall  be  delivered  to  the  parties  and  completed. 
And  when  earnest-money  has  not  intervened,  nor  a  writing,  and 
delivery  has  not  followed,  there  will  be  a  place  for  repentance, 
and  the  contracting  parties  may  with  impunity  recede  from  the 
contract.  But  if  the  price  has  been  paid,  or  a  part  of  it,  and 
delivery  has  followed,  the  purchase  and  sale  will  be  complete, 
nor  can  any  of  the  contracting  parties  recede  from  the  contract, 
under  the  pretext  of  the  price  not  having  been  paid  in  part  or 
in  whole."  ^ 

It  will  thus  be  seen  that  the  giving  of  earnest  or  part  payment 
"  to  bind  the  bargain,"  was  derived  by  the  common  law  from 
the  civil  law,  and  the  seventeenth  section  of  the  Statute  of 
Frauds  is  little  more  than  declaratory  of  the  common  law.  There 
is,  however,  one  feature  of  the  old  common  law  with  respect  to 
earnest  or  part  payment  which  is  no  longer  in  force.  Formerly, 
adopting  the  view  of  some  of  the  old  civil-law  writers,  it  was 
a  feature  of  the  common  law  that  when,  in  the  name  of  earnest- 
money,  anything  had  been  given  before  delivery  of  the  subject 
of  the  purchase,  if  the  purchaser  repented  of  his  purchase  and 
wished  to  recede  from  his  contract,  he  could  do  so  upon  losing 
what  he  had  given ;  and  if  the  vendor  repented,  he  could  only  be 
relieved  of  his  contract  by  restoring  double  of  what  he  had  received 
as  earnest-money .2      The  payment  of  earnest-money  was   thus 

1  Bracton,  b.  2,  c.  2\,  f.  61.  case  where  a  sum  was  to  be  forfeited  if  a 

2  Bracton,  b.  2,  c.  27,  f.  61,  62.  It  was  proposed  agreement  were  not  carried  out; 
a  question  among  the  civil-law  doctors,  and  the  other  where,  as  with  us  under  the 
when  the  seller  received  earnest,  after  the  statute  of  frauds,  the  payment  is  made  at 
contract  of  sale  was  concluded,  whether  or  after  the  completion  of  the  contract, 
each  of  the  parties  might  compel  the  other  Pothier  thus  deals  with  these  questions  : 
to  execute  his  obligation,  and,  in  default  "  In  the  case  of  earnest  given  at  the  time 
thereof,  might  cause  the  other  to  be  con-  of  a  contract  only  projected  and  not  con- 
demned in  all  the  damages  and  interests  eluded,  it  is  clear  that  the  buyer,  who  re- 
resulting  from  its  non-execution  in  the  fuses  to  conclude  the  bargain,  is  discharged 
same  manner  as  if  no  earnest  were  given  ;  from  his  obligation  by  a  loss  of  the  earn- 
or  whether  it  was  in  the  power  of  the  est,  and  that  he  cannot  be  constrained  to 
buyer  to  discharge  himself  from  his  obli-  a  payment  of  the  price,  siiioc^  the  bargain 
gation  by  offering  to  lose  the  earnest;  and  not  being  yet  concluded  he  has  not  yet 
in  that  of  the  seller  to  desist  in  like  man-  contracted  the  obligation  to  ])ay  it.  For 
ner  from  his  own  by  offering  to  pay  double  the  same  reason  we  can  demand  nothing 
the  earnest.  This  view  was  held  by  Fachi-  more  than  double  the  earnest  of  tlu;  i)arty 
neus  (lib.  II.  controv.  28)  and  the  doctors  who  receives  it,  since  he  is  not  yet  obliged 
cited  by  him,  as  their  deduction  from  the  to  a  delivery  of  the  thing ;  but  it  ought 
Institutes  and  tlie  Code  of  Justinian.  But  to  be  otherwise,  when  the  earnest  is  given 
Weissembach,  Viiinius,  and  Pothier  were  after  the  conclusion  of  the  bargain.  The 
of  the  opposite  opinion.  The  views  of  the  buyer  may,  in  that  case,  be  constrained  to 
former  were  adopted,  as  we  have  seen,  by  a  payment  of  the  price,  since  he  is  under 
Bracton.  Pothier  makes  the  distinction  an  obligation  to  pay  it ;  and,  for  the  same 
that,  under  the  civil  law,  there  were  two  reason,  the  seller  may  be  constraiipd  to 
descriptions  of  payment  of.  earnest-money;  deliver  the  thing,  and  in  defaidt  of  being 
one  where  it  was  given  at  the  time  a  con-  ablf;  to  deliver  it  may  be  condemned  in  all 
tract  was  only  projected,  and  not  con-  tiie  expenses,  damages,  and  interests  of  tlie 
eluded,  and  which  answered  with  us  to  the  buyer  ;  and  neither  of  tiic  parties  can  be 


284 


COMMENTAEIES   ON   SALES. 


[book    IV. 


treated  more  like  a  forfeiture,  as  in  the  case  of  Howe  v.  Hayward,i 
than  as  it  is  now,  a  payment  absolutely  to  bind  the  bargain  without 
the  option  of  having  it  treated  simply  as  a  forfeiture.^ 

Under  the  English  statute,  and  under  such  other  statutes  as 
are  in  effect  the  same  as  it,  the  giving  of  earnest  or  part  payment 
of  the  purchase-money  to  bind  the  contract,  may,  like  the  part 
delivery  of  the  goods,  or  the  signing  of  the  memorandum,  be  either 
at  the  time  of  the  making  of  the  contract,  or  at  any  reason- 
able time  subsequent  thereto,  —  a  reasonable  time,  in  the  absence 
of  the  cancellation  of  the  contract  in  the  mean  time,  being  at  any 
time  before  action  is  brought  on  the  contract. 

Blackstone,  correctly  we  think,  treats  the  delivery  of  part  of 
the  goods  by  the  vendor  as  "  earnest "  to  bind  the  sale,  just  as  he 
treats  payment  of  a  part  of  the  price  by  the  vendee  as  "  earnest 
to  bind  the  bargain."  His  language  is,  "  No  contract  for  the  sale 
of  goods  to  the  value  of  £10  or  more  shall  be  valid  unless  the 
buyer  actually  receives  part  of  the  goods  sold  by  way  of  earnest 
on  his  part ;  unless  he  gives  part  of  the  price  to  the  vendor  by 
ivay  of  earnest,''^  etc.^ 

Thus,  many  of  the  decisions  relative  to  the  part  delivery  of  the 
goods  as  "  earnest"  to  bind  the  bargain  are  equally  applicable  to 
the  payment  of  part  of  the  price  as  earnest  for  the  same  purpose. 
Cooper  V.  Elston*  holds,  that  where  there  had  been  a  sale  by 


discharged  from  his  obligation,  though  the 
one  otters  to  lose  the  earnest,  or  the  other 
to  pay  double  the  amount.  As  the  earn- 
est is  given  in  this  case  in  order  to  con- 
firm the  contract,  and  to  render  it  more 
certain  and  known,  it  would  be  absurd  to 
give  it  an  effect  to  destroy  the  contract  by 
destroying  the  obligations,  rights,  and  ac- 
tions wliich  result  from  it.  .  .  .  Though 
the  buyer,  who,  after  the  conclusion  of  the 
bargain,  gives  earnest,  refuses  to  execute 
tlie  bargain  and  to  pay  the  price,  if  he  is, 
notwithstanding,  constrained  to  pay  and 
does  pay  it,  he  ought  not  to  lose  the"  earn- 
est, which  ought  to  be  restored  to  him,  or,  if 
it  consist  of  a  sum  of  money,  to  be  deducted 
from  the  price  ;  for  it  is  only  in  case  of  a 
non-execution  of  the  bargain  "by  his  refusal 
that  he  ought  to  lose  it;  but  when  he  pays 
it,  though  by  constraint,  the  bargain  is 
executed.  There  is  more  difficulty  when 
the  seller  does  not  really  execute  the  con- 
tract, but  is  condemned,  in  default  of  exe- 
cuting it,  to  the  damages  and  interests  of 
the  buj'er.  1  think  that  even  in  this  case 
the  buyer  can  claim  nothing  more  than  a 
return  of  the  earnest,  and  not  a  restitution 
of  double  the  amount ;  for  the  restitution 
of  double  the  earnest  being  a  penalty, 
which  stands  in  the  place  of  the  damages 
and  interests  resulting  from  the  non-execu- 


tion of  the  contract,  the  buyer  would  cause 
himself  to  be  twice  paid  for  the  same 
thing  if,  after  being  fully  satisfied  for  his 
damages  and  interests,  he  could  also  com- 
pel a  restitution  of  double  the  earnest, 
contrary  to  the  rule  of  equitj*.  Bona 
fides  non  patitxcr  ut  his  idem  exigatur. 
Dig.  50,  17,  57."  Pothier  on  Sales,  p.  6, 
c.  1,  pi.  508,  509.  The  law  with  us  under 
the  statute  of  frauds  is  exactly  as  it  was 
claimed  by  Weissembach,  Vinnius,  and 
Pothier,  to  have  been  by  the  civil  law 
with  respect  to  payments  of  earnest-money 
or  part  payment  to  bind  a  contract,  which 
has  not  been  merely  proposed,  but  has 
been  concluded. 

1  108  Mass.  54. 

2  In  Neil  V.  Cheves.  1  Bail.  (S.  C.)  537, 
after  the  payment  of  fifty  dollars  as  earn- 
est-money on  account  of  the  purchase- 
money  of  cotton,  the  property  in  the  cot- 
ton not  having  vested  in  the  vendee;  where 
the  court  held,  under  the  facts,  that  the 
vendor  had  the  right  to  rescind  the  con- 
tract, it  was  also  held  that  the  vendee 
was  entitled  to  recover  back  the  fifty  dol- 
lars. Parker  v.  Steward,  34  Vt.  127,  is  to 
the  same  eff"ect. 

3  2  Bl.  Com.  448. 
*  7  T.  R.  14. 


PART  v.]  EARNEST  OR  PART  PAYMENT.  285 

sample  of  fifty  quarters  of  wheat,  the  delivery  of  the  sample, 
which  was  no  part  of  the  fifty  quarters  which  were  to  be  deliv- 
ered, was  not  sufficient  to' bind  the  bargain  sp  as  to  take  the  case 
out  of  the  statute.  The  delivery  of  the  sample  was  not  made 
until  two  days  after  the  day  of  the  sale  ;  but  the  court  imply 
that,  notwithstanding  this,  had  the  sample  been  a  part  of  the^ 
goods  which  were  to  be  delivered,  this  jiost  delivery  would  have 
taken  the  case  out  of  the  statute.  So  in  Damon  v.  Osborne,^ 
where  a  quantity  of  bricks  was  sold,  and  it  was  claimed  that  the 
case  was  within  the  Statute  of  Frauds,  because  the  value  of 
the  goods  contracted  for  exceeded  £10,  and  there  was  no  earnest 
paid,  no  contract  in  writing,  and  no  part  of  the  goods  was  deliv- 
ered at  the  time  of  the  sale  ;  the  court  held  that  a  delivery  of  part 
of  the  goods  within  a  reasonable  time  after  the  sale  would  have 
been  sufficient  to  have  taken  the  case  out  of  the  statute. 

In  Whitwell  v.  Wyer,^  a  quantity  of  rum  was  sold,  none  of  it 
being  then  delivered,  no  payment  being  made  to  bind  the  bargain, 
nor  any  memorandum  of  the  agreement  being  made.  Nine  days 
after  the  date  of  sale  the  vendees  made  a  part  payment  of  £1000 
on  the  price.  The  court  held  that  this  payment  established  a 
contract  which  might  be  enforced,  notwithstanding  the  provisions 
of  the  statute  ;  and  that  what  took  place  between  the  parties  at 
the  time  of  the  part  payment  was  incorporated  into  and  became  a 
part  of  the  original  contract,  as  it  only  then  became  a  contract 
which  the  law  would  enforce. 

In  Townsend  v.  Hargraves  ^  the  court  sustained  an  action  on  a 
verbal  contract  where  there  had  been  a  delivery  of  part  of  the 
goods  several  days  after  the  time  the  contract  was  entered  into. 
The  court  there  held,  that  except  that  the  statute  provides  that  no 
action  shall  be  brought,  there  would  be  no  good  reason  to  hold 
that  a  memorandum  signed,  or  an  act  of  acceptance  proved,  at  any 
time  before  the  trial,  would  not  be  sufficient. 

It  was  claimed  in  Bill  v.  Bamont  ^  that  part  acceptance  of  the 
goods,  earnest,  or  part  payment  would  take  the  case  out  of  the 
statute,  where  either  of  those  acts  had  been  performed  even  after 
action  brought.  But  the  court  held  otherwise,  Parke,  B.,  saying: 
"  With  regard  to  the  point  that  a  memorandum  in  writing  after 
action  brought  is  sufficient,  it  is  certainly  quite  a  new  point,  but  I 
am  clearly  of  opinion  that  it  is  untenable.  •  There  must,  in  order 
to  sustain  the  action,  be  a  good  contract  in  existence  at  the  time  of 
action  hrouyht ;  and  to  make  it  a  good  contract  under  tlie  statute, 
there  must  be  one  of  the  three  requisites  named.     I  think,  there- 

1  1  Pick.  476.  8  118  Mnss.  325. 

2  11  Mass.  6.  *  9  M.  &  W.  36. 


ogg  COMMENTARIES   ON    SALES.  [BOOK   IV. 

fore,  that  a  written  memorandum,  or  part  payment,  after  action 
brought,  is  not  sufficient  to  satisfy  the  statute."  Ergo,  if  done 
before  action  brought  at  least  within  a  reasonable  time  after  the 
verbal  contract  is  entered  into,  it  is  sufficient  to  satisfy  the 
statute.  See  Tisdale  v.  Harris  ^  as  to  a  memorandum  signed 
Several  days   subsequent   to   the   verbal   contract. 

So,  in  Leather  Cloth  Co.  v.  Hieronimus^  a  memorandum  in 
writing  made  by  tlie  defendant,  after  the  goods  had  been  delivered 
to  a  carrier  and  been  totally  lost  at  sea  while  in  his  hands,  was 
held  sufficient  to  take  the  case  out  of  the  statute.^ 

And  in  Marsh  v.  Hyde*  the  facts  showed  a  completed  sale  by 
oral  agreement,  with  an  acceptance  and  receipt  of  part,  subsequent 
in  point  of  time  to  the  original  contract,  which  was  held  to  take 
the  case  out  of  the  statute.  But  where  a  subsequent  acceptance 
of  a  part  is  relied  on  to  take  the  case  out  of  the  statute,  it  must 
appear  that  such  acceptance  was  with  an  intention  of  the  buyer 
to  perform  the  whole  contract,  and  to  assert  the  buyer's  ownership 
under  it  over  the  whole  subject  of  the  verbal  sale  ;  and,  where  the 
contrary  of  this  appears,  the  accepting  of  a  part  will  not  take  the 
case  out  of  the  statute  as  to  the  residue.^ 

In  New  York,  Wisconsin,  and  a  few  of  the  other  States,  the 
language  of  the  seventeenth  section  of  the  English  Statute  of 
Frauds  has  been  materially  departed  from  with  respect,  inter  alia, 
to  the  payment  of  part  of  the  purchase-money  to  take  the  case 
out  of  the  statute.  By  the  New  York  statute  ®  it  is  enacted  that 
every  contract  for  the  sale  of  any  goods,  chattels,  or  things  in 
action,  for  the  price  of  fifty  dollars  or  more,  shall  be  void,  unless 
(1)  a  note  or  memorandum  of  such  contract  be  made  in  writing, 
and  be  subscribed  by  the  parties  to  be  charged  thereby ;  or  (2) 
unless  the  buyer  shall  accept  and  receive  part  of  such,  or  the  evi- 
dences, or  some  of  them,  of  such  things  in  action ;  or  (3)  unless 
the  buyer  shall,  at  the  time,  pay  some  part  of  the  purchase-money. 
This  statute,  while  leaving  the  clauses  as  to  the  effect  of  the  note 
or  memorandum  in  writing,  and  as  to  the  acceptance  and  receipt 
of  a  part  of  the  goods,  substantially  as  in  the  English  statute,  re- 
quires —  different  from  the  English  statute,  and  from  that  of  the 
most  of  the  States  —  that  the  payment  of  some  part  of  the  purchase- 
money  should  be  '•'■at  the  time  "  of  the  making  of  the  contract. 

Here  "  earnest "  is  omitted ;  but,  as  we  have  seen,  as  the  pay- 
ment of  earnest  is  in  effect  the  same,  under  the  statute,  as  a  part 

1  20  Pick.  9.  43  Gray,  331. 

2  L.  R.  10  Q.  B.  140.  6  Atherton  v.  Newhall,  123  Mass.  141; 

3  Analogous   facts   existed   relative   to  Remick  v.  Sandford,  120  Mass.  309. 
part  acceptance  in  Townsend  v.  Hargaves  ^  Ji.  s.  136,  §  3. 

{supra),  118  Mass.  325. 


PART  v.]  EARNEST  OR  PART  PAYMENT.  287 

payment  of  the  price,  this  is  not  material.  But  the  provision  that 
the  part  payment  of  the  purchase-money  to  take  the  case  out  of 
the  statute,  must  be  "  at  the  liyne  "  of  the  contract,  is  a  substantial 
variation  from  the  statute  of  Charles  2.  Thus,  while,  as  in  England, 
the  subsequent  signing  of  a  note  or  memorandum  in  writing,  and 
the  subsequent  acceptance  and  receipt  of  a  part  of  the  goods,  will, 
in  New  York,  and  in  the  other  States  in  which  a  similar  provision 
to  that  in  the  New  York  Statute  of  Frauds  is  adopted  in  their 
statutes,  take  the  case  out  of  the  statute,  the  subsequent  part  pay- 
ment of  the  purchase-money  will  not  have  that  effect.  This,  too, 
in  effect  shows,  that,  under  the  English  statute,  or  other  of  a 
similar  character,  the  subsequent  payment  of  part  of  the  purchase- 
money  will  take  (as  we  have  shown  that  it  will)  the  case  out  of 
the  statute,  equally  with  the  post  signing  of  the  note  or  memor- 
andum in  writing,  or  the  post  delivery  and  acceptance  of  a  part  of 
the  goods. 

In  so,  in  effect,  deciding,  in  an  early  case  under  the  New  York 
statute,  the  Supreme  Court  of  that  State  only  with  some  hesitation 
accepted  the  reading  of  the  New  York  act  as  regards  the  necessity 
of  the  part  payment  "  at  the  time,"  in  order  to  take  the  case  out 
of  the  statute.  They  held,  in  accordance  with  the  English  cases, 
that,  where  a  contract  is  made  for  the  sale  of  an  article  of  mer- 
chandise at  a  stipulated  price,  although  the  contract  be  void  under 
the  Statute  of  Frauds,  the  price  agreed  upon  may  be  recovered,  if 
the  article  be  subsequently  delivered  and  accepted ;  and  that  a 
subsequent  acceptance  in  whole  or  in  part  of  the  article  agreed  to 
be  sold,  renders  the  contract  valid. ^ 

The  Massachusetts  Supreme  Court,  in  Marsh  v.  Hyde,^  noticed 
the  distinction  between  the  New  York  statute  and  those  statutes 
which  are  similar  to  the  29th  Charles  2.  Mr.  Justice  Bigelow,  in 
delivering  the  judgment,  said  :  "  There  is  nothing  in  the  statute 
which  fixes  or  limits  the  time  within  which  a  purchaser  is  to 
accept  and  receive  part  of  the  goods  sold,  or  give  something  in 

^  Sprawue  v.  Blake,  20  Wend.  61.     In  §  3.     It  will  also  be  noticed  that,  in  this 

so  holding  the  court  said  :   "  On  a  deliv-  case,    the    court   call    the    ])art    payment 

ery,  without  any  change  of  terms,  even  of  "earnest,"   although,    as   we   have   .seen, 

part,  a  previous  proposition  [to  pay  a  cer-  that  word,  is  omitted  from  the  New  York 

tain  price  becomes  binding.     The  part  de-  statute.     Hart  v.  Sattley,  3  Camp.   528  ; 

livery  need  not,  by  the  statute,  be  made  at  Chaplin  v.  Rogers,  1   East,  192;  Vincent 

the  time  of  the  contract.     An  oral  agree-  v.  Germond,  11  Jolins.   283  ;  Jennings  v. 

inent  may  stand   for   a  mutually  agreed  Webster,  7  Cow.  256  ;  Cutwater  v.  Dodge, 

proposition,  and  unless  revoked  the  subse-  6  Wend.   397,  400,  and    many  other  au- 

quent  acceptance  of  part  of  the  goods  which  thorities,  show  that  a  subsequent  receipt 

were  the  subject  of  the  oral  negotiation  will  and   acceptance   by  the  purcliasi^r  or  his 

make  it  binding.    The  statute  does  not  re-  agent  of  the  goods,  in  whole  or  in  part, 

quire  that  the  part  acceptance  should  be  under  an  oral  contract,  takes  it  out  of  the 

at  the  time  of  the  oral  contract,  though  it  statute. 

seems  to  be   otherwi.se   of  earnest-money  ^  3  Gray,  331. 
which  is  to  bind  the  bargain."    2  K.  S.  70, 


288  COMMENTARIES   ON   SALES.  [BOOK   IV. 

earnest  to  bind  the  bargain,  or  in  part  payment.  It  would  fully 
satisfy  its  terms  if  the  delivery  or  part  payment  were  made  in 
pursuance  of  a  contract  previously  entered  into.  In  Xew  York  it 
is  expressly  provided  that  the  part  payment  under  the  contract 
shall  be  made  'at  the  time.'  But  no  such  language  is  found 
in  any  part  of  our  statute.  Nor  can  we  see  any  good  reason 
for  implying  that  any  such  limitation  was  intended  by  its  pro- 
visions." 

And,  dealing  with  the  general  question,  the  same  learned  judge, 
in  the  same  case,  further  said :  "  It  is  the  fact  of  the  delivery 
under  and  in  pursuance  of  an  agreement  of  sale,  not  the  time 
when  the  delivery  is  made,  that  the  statute  renders  essential  to 
the  proof  of  a  valid  contract.  It  is  to  be  borne  in  mind  that, 
in  all  cases  where  there  is  no  memorandum  or  note  in  writing  of 
the  bargain,  the  verbal  agreement  of  the  parties  must  be  proved. 
The  statute  does  not  prohibit  verbal  contracts.  On  the  contrary, 
it  presupposes  that  the  terms  of  the  contract  rest  in  parol  proof, 
and  only  requires,  in  addition  to  the  proof  of  such  verbal  agree- 
ment, evidence  of  a  delivery  or  part  payment  under  it.  It  does 
not  therefore  change  the  nature  of  the  evidence  to  be  offered  in 
support  of  the  contract.  It  merely  renders  it  necessary  for  the 
party  claiming  under  it  to  show  an  additional  fact  in  order  to 
make  it  '  good  and  valid.'  The  argument  is  a  fallacy  which  as- 
sumes that  the  contract  takes  its  legal  force  and  effect  from  the 
time  when  its  terms  are  verbally  agreed  upon ;  and  that  therefore, 
being  void  when  made,  it  cannot  become  valid  bv  any  subsequent 
act  of  the  parties.  It  would  be  more  correct  to  say,  that,  until 
the  formalities  required  by  the  statute  are  complied  with,  there  is 
no  legal  and  valid  contract  entered  into.  The  terms  verbally 
agreed  upon  between  the  parties  amount  to  little  else  than  a  propo- 
sition for  a  contract ;  and  it  is  not  until  delivery  of  part  of  the 
goods  takes  place,  or  part  payment  is  made,  that  it  assumes  the 
qualities  of  a  legal  contract,  in  the  same  manner  as  the  written 
memorandum  of  the  previous  verbal  agreement  of  the  parties 
becomes  in  law  the  binding  agreement  between  them.  It  is  not, 
therefore,  the  subsequent  delivery  of  goods  which  gives  vitality 
and  force  to  a  contract  previously  void.  Until  the  delivery  is 
made,  no  binding  contract  exists ;  and  when  it  takes  place,  the 
act  of  the  parties  unites  with  their  previous  verbal  understanding 
to  create  a  full,  complete,  and  obligatory  agreement.  In  all  cases 
like  the  present,  a  single  inquiry  operates  as  a  test  by  which  to 
ascertain  whether  a  contract  is  binding  upon  the  parties  under  the 
Statute  of  Frauds.  It  is  whether  the  delivery  and  acceptance, 
whenever  they  took  place,  were  in  pursuance  of  a  previous  agree- 


PART   v.]  EARNEST   OR   PART   PAYMENT.  289 

inent.  If  the  verbal  contract  is  proved,  and  a  delivery  in  pur- 
suance of  it  is  shown,  the  requisites  of  the  statute  are  fulfilled."  ^ 

In  McKnight  v.  Dunlop,^  it  was  contended  that  the  acceptance 
and  receipt,  some  two  months  after  the  making  of  an  oral  con- 
tract, of  part  of  the  goods,  did  not  take  the  case  out  of  the  New 
York  statute.  But  the  Court  of  Appeals  there,  following  the 
decision  in  Sprague  v.  Blake,^  held  otherwise.* 

A  case  in  Massachusetts-''  is  the  first  case  we  have  found  in 
which  judicial  construction  has  been  given  to  the  clause  in  the 
New  York  statute  providing  that  the  part  payment,  to  take  the 
case  out  of  the  statute,  must  be  made  "  at  the  time  "  of  the  con- 
tract. In  this  case  a  parol  contract  for  the  sale  of  stock  was 
made  in  New  York.  The  first  conversation  between  the  parties 
took  place  on  August  21,  when  the  terms  of  the  sale  were  verbally 
agreed  on,  the  parties  then  parting,  the  purchaser  agreeing  to 
take  the  stock  at  the  price  and  terms  agreed  on,  bat  saying  that 
he  would  not  have  time  to  close  the  contract  on  that  day,  but 
would  close  it  in  a  few  days.  Payments  were  subsequently  made 
on  account  of  the  purchase-money  in  September  and  November 
following.  The  court  construed  the  clause  in  the  New  York 
statute  to  mean  that  the  payment  was  not  restricted  to  a  payment 
made  at  the  precise  period  of  making  the  verbal  agreement.  The 
court,  however,  went  much  farther  than  this,  and  held  that  while, 
until  the  part  payment  was  made,  neither  party  would  be  bound 
by  its  terms,  the  vendee  would  be  under  no  obligation  to  make  a 
payment,  and  the  vendor  under  no  obligation  to  receive  one.  But 
when  actually  made  and  accepted  with  the  full  concurrence  of 
both  parties,  then  the  contract  takes  effect ;  then  a  part  payment 

1  See  Elliott  v.  Thomas,  3  M.  &  W.  as  reported  by  the  revisers,  required  as  well 
170;  Scott  V.  Eastern  Counties  Ry.,  12  M.  the  acceptance  and  receipt  of  a  part  of  the 
&  W.  33  ;  A'incent  v.  Germond,  11  Johns,  goods,  as  the  payment  of  a  part  of  the  pur- 
283  ;  Davis  v.  Moore,  13  Me.  424.  chase-money,  to  be  at  the  time  of  making 

2  1  Seld.  537.  the  contract.  The  legislature  struck  out 
^  20  Wend.  63.  of  the  sub-division  as  reported,  in  relation 
*  The  court  there,  referring  to  the  New,    to  the  acceptance  and  receipt  of  a  part  of 

York  statute  of  frauds,  said  :  "  If  part  the  goods,  the  words  'at  the  time,'  which 
payment  of  the  purchase-money  is  relied  confined  the  acceptance  and  receipt  of  the 
upon  to  except  the  contract  from  the  opera-  goods  to  the  time  the  contract  was  entered 
tion  of  the  statute,  it  must,  by  the  terms  into.  This  action  of  the  legislature  is  a 
of  the  statute,  be  made  at  the  time  the  very  clear  indication  of  their  intention  to 
contract  is  entered  into.  But  when  the  provide  that  a  contract  for  the  sale  of  goods 
validity  of  the  contract  depends  upon  for  the  price  of  $50  or  more  should  be  valid, 
the  acceptance  and  receipt  of  a  part  of  if  a  part  of  the  goods  sold  were  accepted 
the  goods,  the  statute  omits  to  require  the  and  received  under  and  in  pursuance  of 
acceptance  and  receipt  to  be  at  the  time  the  contract,  although  after  the  time  of 
of  the  making  of  the  contract.  The  old  making  it.  And  this  is  the  judicial  con- 
statute  of  frauds  did  not  specify  the  time  struction  which  has  been  given  to  the 
when  either  the  goods  were  to  be  accepted  statute."  Sprague  v.  Blake,  20  Wend.  63, 
and  received,  or  a  yiart  of  the  purchase-  stated  supra. 

money  was  to  be  paid.     (1   N.  Y.  R.   L.  5  Thompson  v.  Alger,  12  Met.  428. 

of  18i3,  79,  §  15.)     The  chapter  of  frauds, 
VOL.  II.  19 


290 


COMMENTARIES   ON   SALES. 


[book  IV. 


of  the  purchase-money  has  been  made ;  and  then  the  parties  have 
made  a  valid  contract. 

The  Massachusetts  Supreme  Court,  after  having  so  held,  say  : 
"  This  would  seem  to  be  a  very  reasonable  construction  of  the 
statute,  if  it  was  necessary  to  decide  the  abstract  question  of  the 
effect  of  payment  of  the  purchase-money  after  the  time  of  entering 
into  a  verbal  contract."  We  think,  had  the  court  been  construing 
the  English  statute,  or  any  of  the  statutes  which  are  in  effect  the 
same  as  it,  their  exposition  of  the  law  would  have  been  quite 
accurate.  But,  in  such  exposition,  we  think  they  entirely  failed 
to  give  any  weight  to  the  clause  in  the  New  York  act,  and  in 
similar  acts,  which,  in  effect,  provides  that  the  payment  must  be 
made  "  at  the  time ; "  i.  e.  at  the  time  of  the  making  of  the  con- 
tract. In  Thompson  v.  Alger,^  however,  such  holding  as  above 
was  a  mere  obiter  dictum.  The  case  actually  turned  upon  the  fact, 
that,  at  the  time  of  the  first  part  payment  in  September,  there 
was  a  new  and  further  negotiation  of  the  parties ;  a  renewal  of 
the  contract,  with  a  new  agreement  as  to  the  time  of  transferring 
the  shares  ;  and  "  at  the  time  "  of  the  making  of  this  last  agree- 
ment, which  was  the  one  the  plaintiff  sought  to  enforce,  the  first 
part  payment  was  actually  made,  as  a  part  of  the  purchase-money 
of  the  shares  which  by  the  agreement  were  to  be  conveyed.  The 
court,  very  properly,  we  think,  held,  that  these  facts  presented  a 
case  of  part  payment  which  brought  the  case  within  the  third 
class  of  exceptions  from  the  operation  of  the  New  York  Statute  of 
Frauds ;  more  particularly  as  the  contract  was  subsequently  recog- 
nised by  both  parties  to  it  as  an  existing  and  valid  one,  and  as 
such  was  acted  upon  by  them. 

The  case  of  Thompson  v.  Alger  2  was  recognised  by  the  New 
York  Court  of  Appeals,  in  McKnight  v.  Dunlop,^  and  the  princi- 
ples in  it,  with  the  following  rider,  thus  correctly  laid  down : 
"  If  the  contract  is  not  in  law  deemed  to  be  made  until  the  part- 
payment  of  the  purchase-money,  and  the  previous  invalid  oral 
agreement  is  merely  referred  to,  to  ascertain  the  terms  of  the 
subsequent  valid  contract,  the  decision  of  the  Supreme  Judicial 
Court  of  Massachusetts  may  be  regarded  as  sound." 

The  first  New  York  case  in  which  the  question  under  the  third 
exception  in  the  New  York  statute  was  directly  decided,  seems 
to  be  Bissell  v.  Balcom.*  This  was  an  action  for  the  price  of 
cattle  for  more  than  S50,  under  a  verbal  contract.  No  part  of 
the  purchase-money  was  paid  at  the  time  of  the  alleged  contract 
of  sale.     After  the  contract  was  concluded,  the  defendant  asked 


1  12  Met  428. 

2  Ibid. 


3  1  Seld.  537. 
*  40  Barb.  98. 


PART    v.] 


EARNEST    OR    PART    PAYMENT. 


291 


the  plaintiff  if  he  wanted  any  money  to  bind  the  bargain  ;  to 
which  the  plaintiff  replied,  that  he  did  not  care  about  it  at  that 
time,  as  their  words  were  good  for  the  bargain.  The  defendant 
then  went  home,  and  nothing  was  said  or  done  on  that  day  on 
the  subject  of  payment  by  the  defendant  of  anything  on  the 
contract.  In  a  day  or  two  after,  the  plaintiff  asked  the  defendant 
for  five  dollars  to  bind  the  bargain,  expressly  saying,  "  It  is  best 
we  bind  the  bargain,  so  there  will  be  no  chance  to  back  out,"  when 
the  defendant  paid  him  three  dollars,  and  in  about  two  weeks 
afterwards  he  paid  him  two  dollars  more.  The  court  held  that 
this  did  not  take  the  case  out  of  the  statute,  and,  in  doing  so, 
took  the  same  view  of  the  decision  in  the  Massachusetts  case 
which  we  have  done.^ 

But,  on  appeal  to  the  Court  of  Appeals,  this  decision  was 
reversed ;  without,  however,  going  as  far  as  was  done  in  the 
dictum  of  the  Massachusetts  case  of  Thompson  v.  Alger,^  that  any 
subsequent  payment  actually  made  and  accepted  with  the  con- 
currence of  both  parties,  was  to  be  deemed  as  made  "  at  the 
time"  of  the  making  of  the  contract  within  the  third  exception 
in  the  New  York  statute. 

In  Bissell  v.  Balcom,-^   the  court,  on  appeal,  took  the  middle 


1  Welles,  J.,  in  delivering  the  judgment 
of  the  majority  of  the  court,  said :  "  To  take 
the  case  out  of  the  statute  by  a  part  pay- 
ment, such  paymentmustbeimade  atthe  time 
of  the  contract.  This  is  the  express  lan- 
guage of  the  statute;  and  to  show  that  such 
was  the  intention  of  the  legislature  it  is  only 
necessary  to  refer  to  the  revisers'  notes.  The 
section  as  originally  reported  by  the  revis- 
ers provided  that  the  goods,  etc.,  should 
be  accepted  and  received  at  the  time.  The 
words  at  the  tbne  were  stricken  out  by  the 
legislature.  The  words  requiring  the  pay- 
ment of  some  part  of  the  purchase-money 
at  the  time  of  the  contract  were  in  the 
original  report  of  the  section,  and  were  re- 
tained by  the  legislature.  The  provisions 
of  the  statute  on  the  subject,  which  were 
in  force  at  the  time  the  revised  statutes 
took  effect,  merely  declared  the  contract 
'  not  good,  except  the  buyer  shall  accept 
and  actually  receive  part  of  the  goods  sold, 
or  give  something  in  earnest  to  bind  the 
bargain  or  in  part  payment,'  or  that  the 
contract  be  in  writing,  etc.  Nothing  is 
there  said  as  to  the  time  when  the  goods, 
etc.,  must  be  received  or  the  earnest- 
money  paid.  The  section  of  the  Revised 
Statutes  as  reported  by  the  revisers  re- 
quired both  to  be  done  at  the  time  of  the 
contract.  The  h^gislature  stnick  out  the 
provision  as  to  the  time  of  accepting  a 
part  of  the  goods,  etc.,  and  enacted  it  as 
to  the  time  when  the  earnest-money  should 


be  paid.  There  is,  I  think,  no  ground  for 
misunderstanding  the  force  or  meaning  of 
the  section  in  question  as  enacted.  The 
case  of  Thompson  v.  Alger,  12  Met.  428, 
is  referred  to  by  the  plaintiffs  counsel  as 
holding  that  the  part  paynient,  under  our 
statute,  may  be  made  after  the  time  of  the 
contract.  TJie  judge  who  delivered  the 
opinion  of  the  court  in  that  case  certainly 
did  advance  such  a  proposition.  But  it 
was  not  necessary  to  the  decision  of  the 
case,  and  no  such  decision  was  in  fact 
made.  The  payments  claimed  were  made 
after  the  negotiation  for  the  purchase  of 
the  railroad  stock  had  commenced,  but  be- 
fore the  agreement  was  finally  concluded, 
and  it  was  upon  that  ground  that  the 
court  held  the  contract  valid.  But  if  oth- 
erwise —  if  the  court  had  decided  that  pay- 
ment after  the  contract  was  concluded,  and 
upon  a  subsequent  day,  would  have  been 
sufficient  to  have  relieved  the  case  from 
the  operation  of  the  statute  —  1  should 
not  feel  bound  to  follow  it,  notwithstand- 
ing mv  great  respect  for  the  distinguished 
and  learned  tribunal  which  n)ade  the  deci- 
sion. It  seems  to  me  that  any  other  view 
of  the  question  than  the  one  I  have  repre- 
sented would  amount  to  a  repeal  of  the 
statute,  or,  at  lea.st,  completely  nullify  the 
words  'at  the  time'  in  the  third  sub-divi- 
sion of  the  .section  referred  to." 

2  12  Met.  428. 

8  39  N.  Y.  276. 


292 


COMMENTARIES   ON   SALES. 


[book  IV. 


and  more  tenable  ground,  not  that  the  words  "  at  the  time  "  in 
the  statute  have  no  meaning,  or  can  be  disregarded ;  but,  that, 
where  both  parties  to  the  previous  negotiations  make  a  distinct, 
intelligent  reference  to  them, —  both  of  the  parties  recognising  the 
want  of  binding  force  or  validity  to  such  negotiations,  because  no 
part  of  the  stipulated  price  has  been  paid,  —  and,  there  is,  as  there 
was  in  Bissell  v.  Balcom,  a  declared  intent  to  make  the  bar- 
o-ain  valid  and  binding,  assented  to,  a  request  for  the  payment 
of  the  money  for  that  purpose,  and  a  payment  in  compliance  with 
that  request,  —  such  a  payment  is  a  payment  of  part  of  the  price 
at  the  time  of  the  agreement,  within  the  only  reasonable  meaning 
and  intent  of  the  statute.  The  court,  however,  while  repudiating 
the  idea  that  eveiy  payment  on  account  of  a  previous  oral  agree- 
ment for  a  sale  operates  per  se,  and  necessarily,  as  a  reiteration 
and  affirmance  of  that  oral  agreement,  do  present  what  they 
call  "a  plausible  argument"  in  favor  of  the  view  that  after 
parties  have  made  an  agreement  complete  and  operative,  in  all 
respects  but  for  the  statute,  and,  at  some  subsequent  period, 
no  matter  how  remote,  the  one  offers  payment  on  that  contract, 
the  mere  act  of  offering  payment,  without  anything  further  on 
his  part,  is  an  offer  to  enter  into  the  relation  and  obligation 
which  the  terms  of  the  previous  oral  agreement  are  apt  to  create, 
and  of  part  performance  of  its  duties ;  and,  if  the  other  accept 
the  payment  on  the  contract,  his  act  is  a  then  present  declara- 
tion or  affirmance  of  his  assent  to  the  conditions  of  the  agreement, 
and  an  acceptance  of  its  performance. 

This  view  —  which  was  not  relied  upon  in  the  actual  decision  of 
the  case  —  would  go,  in  effect,  the  full  length  of  holding,  that  which 
the  court  declare  they  have  no  intention  of  holding,  —  that  any  pay- 
ment on  account  of  a  previous  oral  agreement  for  a  sale  operates 
perse,  and  necessarily, as  a  reiteration  and  affirmance  of  that  oral 
agreement;  that  payment  at  any  time,  accepted  on  account  of 
the  oral  contract,  is  to  be  deemed  a  reproduction  of  all  the  terms 
and  conditions  of  the  contract  in  the  minds  of  the  parties,  a  meet- 
ing of  those  minds  in  a  present  mutual  assent,  and  a  compliance 
with  the  statute  by  payment  and  acceptance  of  part  of  the  price ; 
that  the  mere  fact  of  payment  creates  a  present,  and  not  merely 
a  past,  agreement  of  sale,  and  payment,  in  the  language  of  the 
statute,  "  at  the  time  "  of  part  of  the  price.  The  argument  for 
such  a  conclusion  seems  to  us  neither  plausible  nor  sound.  If 
the  language  in  the  statute  means  anything,  we  think  it  means 
that  the  payment,  to  take  the  case  out  of  the  statute,  so  that 
the  oral  contract  may  be  enforced,  must  be  made,  as  we  think 
is  unquestionably  implied,  "  at  the  time  "  of  the  making  of  the 


PART    v.]  EARNEST   OR   PART   PAYMENT.  293; 

contract :  that  the  statute  has  respect  to  the  time  of  the  making 
of  the  oral  contract,  at  which  time  the  money  must  be  paid,  and 
not  to  the  very  converse  of  this,  —  the  part-payment  of  the  money 
at  some  other  time  than  that  of  the  making  of  the  contract,  in 
order  to  render  valid  an  oral  contract  declared  invalid  because 
"  at  the  time  "  of  its  having  been  made,  there  had  been  no  part 
payment  of  the  consideration  money. 

This  view,  of  course,  to  satisfy  the  requirements  of  the  statute, 
would  not  prevent  the  parties  who  had  made  a  verbal  contract, 
invalid  because  those  requirements  were  not  complied  with,  from 
making  a  new  contract  which  would  not  be  open  to  such  an 
objection  ;  nor,  when  the  parties  had  been  negotiating,  but  had 
not  concluded  the  terms  of  the  contract,  could  there  be  said  to 
be,  dehors  the  statute,  a  contract  made  until  the  terms  were 
finally  agreed  upon,  to  which  "  the  time  "  of  part-payment  in 
the  contract  would  have  relation.  But,  as  an  illustration,  we 
think  if  parties  made  an  oral  contract  of  sale,  defective  because  of 
non-compliance  with  the  provisions  of  the  statute,  the  statute 
would  not  be  complied  with,  by  the  vendee,  six  months  later, 
simply  enclosing  to  the  vendor  a  sum  of  money  on  account  of  the 
oral  contract  made  between  them  six  months  before.  And  we 
think  that  the  mere  retention  of  such  money  by  the  vendor 
would  not  render  valid  the  previous  invalid  contract,  so  as  to 
enable  either  the  vendor  or  the  vendee  to  enforce  the  oral  contract, 
on  the  ground  that  there  had  been  a  sufficient  part-payment  "  at 
the  time  "  of  the  making  of  the  contract  to  satisfy  the  statute. 

As  far  as  the  reasoning  in  Bissell  v.  Balcom  ^  called  "  plausible  " 
controverts  this  view,  we  think  neither  it,  any  more  than  the  view 
of  the  Massachusetts  Court  in  Thompson  v.  Alger,  ^  can  be  fairly 
sustained ;  and  that,  if  those  views  were  judicially  sustained,  the 
third  clause  in  the  New  York  statute  would  be  judicially  repealed.^ 
We  think,  also,  that  the  view  of  the  New  York  Court  of  Appeals,^ 
in  support  of  their  "  plausible  "  argument,  that  when  the  payment 
has  not  been  made  "  at  the  time  "  of  the  making  of  the  contract, 
the  oral  contract  may  be  deemed  void  for  some  purposes  and  not 
for  others,  is  also  untenable,  and  is  unwarranted  by  the  statute, 

1  39  N.  Y.  275,  at  pp.  283,  284.  was  paid.     It  assumes  that  there  may  be 

2  12  Met.  428.  such  contracts  that  shall  be  void,  and  that 
^  That  clause,  in  effect,  is  that  every     such  void  contracts   shall    not    be    made 

contract  for  the  sale  of  any  goods,  chat-  good  by  a  part  payment  of  the  purchase- 

tels,  or  things  in  action,  for  the  price  of  money,  unless  such   i)aynient  shall    liave 

fifty  dollars  or  more,  shall  be  void,  unless  been  made  at  the  time  of  the  making  of 

the  buyer  shall  at  the  time  (i.  c,  "at  the  the  contract.     Ergo,  that  there  may  be  a 

time  "of  the  making  of  the  contract)  ])ay  j)art  payment  of  the  purchase-money,  not 

some  part  of  the  purchase-money.     The  made  at  tlie  time  of  the  making  of  the 

evidence,  then,  required  to  prevent  such  a  contract,  wliicli  will  not  render  such  void 

contract  from  ijeing  void  is  that  at  the  time  contract  good. 
of  its  making  part  of  the  purchase-money  *  At  p.  283. 


294 


COMMENTARIES   ON   SALES. 


[book  IV. 


which^  in  letter  or  in  spirit,  makes  no  such  discrimination  as  is 
made  in  the  "  plausible  "  argument  of  the  court.i 

In  a  case  in  the  Supreme  Court  of  New  York,^  decided  concur- 
rently with  Bissell  v.  Balcom,^  in  the  Court  of  Appeals,  it  was 
expressly  decided,  absolutely  in  terms,  that "  the  subsequent  payment 
of  the  money  is  a  .  .  .  compliance  with  the  statute  which  requires 
it  to  be  paid  at  the  time."  ^  On  the  face  of  this  proposition  the 
contradiction  is  so  apparent  as  to  stamp  it  with  its  own  refutation,^ 


1  But,  after  having  indulged  in  their 
plausible  argument,  the  court  really  place 
no  reliance  ou  it,  but  decide  the  case  on 
safer  grounds.  They  say:  "The  present 
case,  however,  does  not  require  that  this 
construction  of  the  statute  should  be  af- 
firmed in  order  to  sustain  the  verdict  of 
the  jury.  It  cannot  be  denied  that,  al- 
though the  parties  had  not,  in  the  first 
instance,  made  a  valid  agreement,  they 
had  a  right,  and  were  fully  competent  to 
make  one.  If  they  were  satisfied  with  the 
terms  to  which  they  had  before  assented, 
it  was  wholly  unnecessary  that  they  should 
change  them  in  any  particular.  It  was 
surely  enough  that,  with  avowed  con- 
sciousness that  they  were  not  bound,  they 
should  mutually  agree  to  a  sale,  and,  for 
the  purpose  of  giving  it  complete  legal 
validity,  do  just  what  they  believed  to  be, 
and  what  the  statute  declares  to  be,  indis- 
pensable. All  this  was  done  in  the  pres- 
ent case.  Both  actually  indicated  their 
knowledge  that  the  bargain  theretofore  ly- 
ing in  words  did  not  bind  them.  They 
both,  in  terms,  referred  to  that  bargain  as 
a  transaction,  the  import  of  which  was  in 
their  minds.  The  clear  intent  and  pur- 
pose now  to  enter  into  such  transaction 
as  should  bind  each  according  to  the  terms 
before  assented  to,  was  expressed.  For  that 
purpose  money  was  asked,  and  for  that 
purpose  money  was  paid.  Could  this  trans- 
action have  borne  any  other  character,  or 
been  any  more  intelligible,  or  of  any  greater 
legal  effect,  if  the  plaintiff  on  that  occasion 
had,  in  words,  said  to  the  other:  'We  yes- 
terday agreed,  I  to  sell,  and  you  to  buy, 
my  fifteen  head  of  cattle,  then  in  our  view 
feeding  on  the  plains,'  etc.,  recapitulating 
the  precise  bargain.  'We  are  both  aware 
that  that  agreement  bound  neither  of  us, 
because  no  part  of  the  price  was  paid.  I 
propose  to  sell  the  cattle  to  you  upon  these 
terms,  and  that  you  should  pay  me  a  part 
of  the  price,'  to  which  the  defendant  re- 
plied :  '  I  assent,'  and  thereupon  makes 
payment.  No  sensible  distinction  can  be 
pointed  out  between  such  a  transaction 
and  that  in  which  the  parties  did  engage, 
with  expressed  consciousness  that  the  for- 
mer treaty  did  not  bind  them,  and  w^ith 
expressed  intent  to  become  bound  to  the 


purchase  and  sale.  When  the  parties  met 
ou  the  day  la-st  referred  to  it  may  be  as- 
sumed that,  although  the  parties  had  each 
assented  to  the  sale,  there  was  no  binding 
agreement,  because  the  statute  was  not 
complied  with.  They  desired  and  in- 
tended to  make  a  valid  sale.  Either  of 
these  things  might  be  done :  First,  an 
agi'eement  might  be  reduced  to  writing  in 
the  terms  of  the  previous  oral  treaty;  or, 
second,  actual  delivery  of  one  or  more  of 
the  cattle  might  be  made  and  accepted  ; 
or,  third,  the  parties  might  manifest  their 
assent  to  a  sale  upon  those  temis,  and  pay 
part  of  the  price.  This  is  not  doubtful, 
and  in  either  case  the  sale  would  be  bind- 
ing. Who  shall  prescribe  the  precise  form 
of  words  in  which  such  mutual  assent  to  the 
sale  shall  then  be  declared  ?  That  form  is 
not  of  the  substance  of  the  matter.  It  is 
enough  that  the  language  and  acts  of  the 
parties  clearly  express  it,  and  it  may  be 
done  as  well  by  reference  to  it,  as  then 
present  in  the  mind  and  memory  of  both, 
as  by  the  idle  form  of  recital  or  repeti- 
tion." 

2  Webster  v.  Zielly,  52  Barb.  482. 

3  39  N.  Y.  275. 

*  The  italics  are  theirs. 

^  The  following  is  the  portion  of  the 
judgment  of  the  Supreme  Court  (Potter, 
J.,  delivering  the  judgment)  relating  to  the 
point  :  "  The  main  point  of  defence  upon 
which  reliance  was  made,  was  that,  assum- 
ing the  agreement  to  be  a  contract  for  the 
sale  of  personal  property  exceeding  §50  in 
value,  and  there  being,  as  conceded,  neither 
a  memorandum  in  writing  nor  a  delivery 
of  any  part  of  the  property,  no  part  of 
the  purchase-money  was  paid  down  at  the 
time  of  making  the  contract.  The  $50  that 
was  to  have  been  paid  by  the  terms  of  the 
oral  agreement  was  not  paid  at  the  time 
the  parties  first  entered  into  the  contract ; 
but  a  few  days  afterward  the  defendant's 
agent  called  upon  the  plaintiffs  and  then 
paid  it,  and  it  was  accepted  by  the  plain- 
tiffs. Upon  the  authority  of  the  case  of 
Bissell  V.  Balcom,  40  Barb.  98,  this  would 
bring  the  case  within  the  statute  of  frauds. 
By  that  case  the  subsequent  payvient  of  the 
money  is  not  a  compliance  mth  the  statute, 
which  requires  it  to  be  paid  at  the  time. 


PART    v.] 


EARNEST   OR   PART   PAYMENT. 


295 


Fortunately  there  are  later,  better,  and  more  authoritative 
decisions  on  the  subject  than  Webster  v.  Ziellj,^  In  Walrath  v. 
Ingles,^  an  oral  contract  was  made  for  the  sale  of  clover-seed, 
exceeding  850  in  value,  no  part  of  which  was  delivered.  The 
payment  for  the  clover-seed  was  to  be  in  sugar,  no  part  of  which 
was  delivered  at  the  time  of  the  making  of  the  contract  for  the 
sale  of  the  sugar.  The  court  held  that  a  subsequent  delivery 
of  the  sugar  would  not  take  the  case  out  of  the  statute.  Under 
tlie  contract  it  was  agreed  that  the  sugar  which  was  to  be  given 


[This  is  the  proposition  they  undertake  to 
refute.]  With  all  my  respect  for  the 
authority  of  that  case,  and  for  the  opinion 
of  the  distinguished  justices  who  adopted 
that  opinion,  I  am  not  able  to  concur  in 
its  soundness.  It  is  contended  that  with- 
out that  construction  the  words  at  the  time 
in  the  statute  are  useless,  and  that  a  dif- 
ferent construction  would  repeal  the  stat- 
ute or  nullify  those  words.  Such  is  not 
my  view.  Statutes  are  always  to  be  sensibly 
construed.  It  is  doubtless  that  these  mere 
words  of  agreement  in  such  a  contract  to 
purchase  would  be  a  void  agreement,  and 
would,  doubtless,  continue  to  be  a  void 
agreement  until  some  act  should  be  done 
to  make  it  binding.  But  where  parties 
have  thus  agreed  by  words,  where  their 
minds  have  met  and  concurred  as  to  the 
terms,  while  their  minds  and  wishes  still 
continue,  and  while  they  still  desire  it  to 
be  a  legal  agreement,  may  they  not  do 
an  act  that  shall  effectuate  that  desire  ?  It 
would  be  strange,  indeed,  if  two  parties 
who  had  made  a  contract  void  under  the 
statute  of  frauds  had  not  the  power  after- 
wards to  meet,  and  by  such  an  act  as  the 
statute  requires  validate  and  make  effectual 
that  which  before  was  a  void  or  imperfect 
contract,  when  the  minds  of  both  concur 
in  making  it  valid.  What  is  the  subse- 
quent meeting  of  the  parties  for  this  pur- 
pose but  a  repetition  of  their  former  void 
agreement  between  themselves,  and  then 
adding  such  other  act  as  will  bring  it 
within  the  requirements  of  the  statute  ? 
Can  they  not  make  a  valid  contract  on 
the  latter  day,  when  both  parties  intend 
to  do  so,  merely  because  they  had  pre- 
viously made  an  invalid  one  ?  I  think 
they  can.  W'hat  the  defendant  calls  the 
time  of  making  the  agreement  may  just  as 
well  be  regarded  as  an  open  proposition 
existing  between  them,  until  the  subse- 
quent validation  of  it  by  an  act  of  earnest, 
as  by  ])ayment  of  money  or  reducing  tJie 
agrcc.meyit  to  toriting.  [Here  the  fallacy 
in  the  reasoning  of  the  court  in  their  con- 
struction of  the  statute  is  transparent. 
The  statute  allows  the  contract  to  be  proved 
by  the  subsequent  note  or  memorandum  in 


writing,  but  not  bj'  a  subsequent  part- 
payment  of  the  money.  If  the  language 
in  the  New  York  statute  were  the  same  as 
in  the  English  statute  of  frauds,  the 
reasoning  here  would  be  sound  ;  but  as  the 
language  is,  in  effect,  just  the  reverse,  the 
reasoning  is  fallacious.]  After  such  an 
act  has  been  performed,  then  the  words  of 
the  statute,  '  at  the  time,'  refer  to  the 
time  of  the  last  act  of  the  parties  to  con- 
summate the  agreement.  [This  is  inac- 
curate. The  '  time  '  referred  to  is  that  of 
the  making  of  the  oral  contract,  at  which 
time,  to  make  the  contract  valid,  the  part- 
payment  must  be  made.  The  effect  of  a 
part  payment  being  made  at  any  time 
subsequent  to  the  making  of  the  oral  con- 
tract is  not  to  make  the  '  void '  contract 
valid.  As  regards  the  part  payment,  the 
oral  contract  is,  under  the  statute,  to  be 
'  void,'  if  such  part  payment  is  not  made 
at  the  time  of  the  making  of  the  oral  con- 
tract.] If  this  last  act,  which  makes  the 
contract  legal,  should  never  happen  to  be 
performed,  then  the  words,  '  at  the  time,' 
must  necessarily  refer  to  the  time  when 
the  void  agreement  [the  italics  here  are 
ours]  was  made.  At  the  time  this  money 
was  paid  there  was  a  concurrence  of  minds, 
on  the  one  part  to  bind  the  agreement 
that  had  been  made-  in  word.s  only  [and, 
therefore,  under  the  statute  was  declared 
'  void '],  and  on  the  other  part  to  receive  it 
as  the  consummation  of  that  agreement. 
[That  is,  of  that  void  agreement.]  I  do 
not  hesitate  to  say  that  such  an  act  of 
paying  money  und>  r  such  circumstances 
brings  the  case  within  the  spirit  and  in- 
tent of  the  statute  of  paying  a  part  of 
the  purchase-money  at  the  time.  It  is 
the  time  that  the  parties  consummated  the 
agreement,  as  both  understood  and  in- 
tended. This  is  the  view  taken  by  a 
distinguished  judge  in  Massachusetts 
(Thompson  v.  Alger,  12  Met.  435)  and 
one  equally  distinguished  in  this  State,  in 
McKnighti;.  Dunlop,  1  Seld.  543,  cited  it 
with  approbation." 

1  52  Harb.  482. 

2  64  Barb.  265. 


296  COMMENTARIES   ON   SALES.  [BOOK   IV. 

ill  pai-t  payment  for  the  clover-seed  was  to  be  taken  away  on  the 
following;  day,  on  the  delivery  of  the  clover-seed.  The  action 
was  for  non-delivery  of  the  clover-seed  ;  it  being  claimed  that 
the  agreement  with  reference  to  the  sugar  constituted  a  part 
payment  of  the  price  of  the  clover-seed.  The  jury  having  found 
for  the  ])lainti£f,  the  decision  was  reversed,  the  court  saying  : 
"  To  constitute  a  payment  as  earnest,  or  a  part  payment,  within 
the  meaning  of  the  Statute  of  Frauds,  there  must  be  an  actual 
transfer  or  delivery  of  the  thing,  or  the  money  agreed  to  be  given 
as  earnest  or  part  payment.  The  statute  requires  it  to  be  paid  at 
the  time  of  the  contract.  How  then  can  a  delivery  of  the  thing 
afterwards,  without  acceptance,  operate  to  take  the  principal  con- 
tract out  of  the  Statute  of  Frauds  ?  To  allow  the  parties  to  agree,  by 
parol,  upon  a  mode  of  payment  to  be  completed  afterwards,  would 
let  in  the  very  mischief  which  the  statute  intended  to  avoid." 

In  Allis  V.  Read,^  in  an  action  for  the  return  of  moneys  paid  on 
a  contract  of  sale  originally  void  by  the  Statute  of  Frauds,  the 
court  held  that  the  subsequent  acts  and  declarations  of  the  par- 
ties between  them  at  the  time  of  the  payment  of  the  money  may 
constitute  a  binding  contract  between  the  parties  as  from  that 
date.  After  fully  stating  the  facts,  showing  what  took  place  be- 
tween the  parties  at  the  time  of  the  part  payment,  the  court  say, 
"  The  terms  and  conditions  were  fully  understood  and  agreed 
upon.  All  the  evils  which  the  statute  intended  to  prevent  were 
guarded  against.  The  acts  of  the  parties  were  numerous,  open, 
and  unmistakable.  It  is  unnecessary  to  determine  that  every 
void  contract  may  be  made  valid  by  a  payment  subsequent  to  the 
time  of  making;  but  I  do  not  hesitate  to  say  that  after  a  void  con- 
tract has  been  made,  the  parties  may  make  a  valid  contract,  by 
adopting  the  terms  of  the  void  contract,  provided  it  appears  that 
such  terms  are  understood  and  assented  to,  and  a  payment  is  made 
and  received  upon  the  contract.  It  is  a  valid  contract  from  that 
time,  and  the  statute  is  as  fully  satisfied  as  if  the  contract  had  been 
made  valid  originally  by  a  payment  at  that  time."  We  think  the 
law,  Avithin  these  limits,  is  correctly  laid  down  in  this  case. 

The  later  New  York  cases  have  placed  the  law  in  the  matter 
on  what  we  think  is  a  perfectly  sound  basis.  In  Hunter  v. 
WetselP  an  action  was  brought  to  recover  the  price  of  hops. 
The  contract  for  their  sale  was  made  in  September,  orally.  The 
plaintiff  relied  on  payments  made  in  November,  of  $200,  and 
$100  in  December  following,  to  take  the  case  out  of  the  Statute 
of  Frauds.  There  was  no  proof  of  anything  having  been  said 
about  the  hops  or  the  contract  when  these  payments  were  made. 

1  45  Barb.  142.  2  57  n.  Y.  375. 


PART    v.] 


EARNEST   OR   PART   PAYMENT. 


297 


The  evidence  simply  was  that  the  payments  were  made  toward  the 
hops,  and  did  not  show  that  the  contract  was  mentioned  or  re- 
ferred to.  The  court  held  that  the  contract  was  void.  The  court 
held  the  following  points  as  established:  1.  Where  a  contract  of 
sale  has  been  made,  good  at  common  law,  but  void  under  the  Stat- 
ute of  Frauds,  and  the  parties  subsequently  meet,  and  for  the  ex- 
press purpose  of  then  complying  with  the  statute  and  making  the 
contract  valid,  a  payment  is  made  by  the  purchaser  upon  the  con- 
tract, at  the  request  of  the  seller,  such  payment  is  made  at  the 
time  of  making  the  contract,  within  the  meaning  of  the  statute. 
2.  Where,  in  case  of  such  a  void  contract,  the  parties  subsequently 
come  together,  and  substantially  restate,  reaffirm,  or  renew  its 
terms,  so  as  then  and  there,  by  the  meeting  of  their  minds,  to 
make  a  contract,  and  then  payment  is  made  upon  the  contract, 
the  statute  is  complied  with.^ 

In  a  subsequent  case  between  the  same  parties,^  another  ques- 
tion arose.  It  appeared,  by  the  evidence  on  the  second  trial,  that 
at  the  time  of  the  payment  of  the  $200,  there  was  a  restatement 
of  the  essential  terms  of  the  contract,  so  as  to  bring  the  case 
within  the  principles  laid  down  by  the  court  in  the  prior  case,^ 


1  The  court,  in  deciding  the  case,  deal 
thus  clearly  and  intelligently  with  the 
whole  question  :  "  The  English  statute  of 
frauds  did  not  require  the  payment,  to 
render  a  contract  for  the  sale  of  goods 
valid,  to  be  made  at  the  time  of  making 
the  contract,  neither  did  the  statute  of 
this  State  in  force  prior  to  the  Revised 
Statutes.  (1  R.  S.  80,  §  15.)  The  revis- 
ers, in  their  report  to  the  legislature,  pro- 
vided that  the  memorandum,  the  delivery, 
and  the  payment,  should  be  made  at  the 
time  the  contract  was  made.  But  the  le- 
gislature modified  the  provision  as  reported, 
and  adopted  it  as  we  now  find  it  in  the 
statutes.  The  revisers  deemed  it  impor- 
tant that  the  conditions  prescribed  to  ren- 
der the  contract  of  sale  valid,  should  be 
complied  with  at  the  time  of  making  the 
contract.  This  was  an  alteration  of  the 
law  as  it  had  before,  for  more  than  a  cen- 
tury, existed  in  this  State  and  in  England, 
and  the  attention  of  the  legislature  was 
thus  distinctly  called  to  it.  It  omitted 
the  requirement  as  to  timr,  so  far  as  re- 
lated to  the  memorandum  and  part  deliv- 
ery, but  retained  it  as  to  part  payment. 
Effect  mu.st  be  given  to  this  language.  A 
contract  for  the  sale  of  personal  property 
for  the  price  of  fifty  dollars  or  more,  is  de- 
clared void  unless  one  of  three  things  be 
done,  the  last  of  which  is  payment  by  the 
buyer,  at  the  time,  of  part  of  the  yiurchase- 
mone}'.  Payment  afterward  iviU  not  do. 
The  payment  must  be  maxle  ivhen  the  con- 


tract is  inade.  Such  is  the  plain  language 
of  the  statute.  Here  there  was  but  one 
contract  made,  which  was  in  September. 
There  was  no  attempt  to  make  any  other. 
There  was  no  talk  about  any,  and  so  far 
as  appears,  no  renewal,  reaffirmation,  or 
restatement  in  any  form  of  that  one.  All 
that  took  place  afterward  was  a  payment 
of  $300  towards  the  hops.  If  this  could 
be  called  a  payment  at  the  time  of  making 
the  contract,  within  the  meaning  of  the 
statute,  then  this  provision  of  the  statute 
serves  no  purpose,  as  every  payment  sub- 
sequently made,  to  apply  upon  the  con- 
tract, would  render  it  binding  within  the 
statute,  and  the  provision  requiring  pay- 
ment at  the  time  would  be  nullified.  A 
payment  not  made  at  tJie  time  can  never, 
tmder  any  circumstances,  satisfy  the  require- 
ment of  the  statute.  But  when  a  contract 
for  the  sale  of  personal  projierty,  valid  at 
common  law,  is  made,  and  the  buyer  after- 
ward pays  expressly  to  bind  the  contract, 
or,  when  payment  is  made,  the  parties  then 
reaffii-m  or  restate  the  terms  of  the  con- 
tract, and  their  minds  then  meet  so  as  to 
make  a  contract,  the  statute  is  undoubt- 
edly satisfied.  Such  a  payment  is  made  at 
the  time  of  thecontract.and  not  afterward." 
We  think  this  is  an  admirable  exposition 
of  the  law  under  this  class  of  statutes. 

2  Hunter  v.   Wetsell,   84  N.   Y.   549, 
2d  case. 

3  Hunter  v.  Wetsell,  57  N.  Y.  375,  1st 
case. 


298 


COMMENTARIES   ON    SALES. 


[book  IV. 


and  on  that  ground  to  make  the  contract  valid  under  the  statute. 
But  the  payment  having  been  by  check,  the  money  for  which  might 
or  mi"ht  not  be  received  at  substantially  the  time  of  the  contract, 
it  was  claimed  that  that  did  not  constitute  a  payment  at  the  time 
of  the  making  of  the  contract,  within  the  meaning  of  the  statute. 
But  the  court'  held  that  it  did.  This  holding  accords  with  the 
English  decisions  on  analogous  questions,^  and  the  reasoning 
of  the  New  York  court  is  to  the  same  effect  as  in  the  English 
cascs.2 

The  late  case  of  Jackson  v.  Tupper  ^  affirms  the  doctrine  that 
under  the  New  York  statute  payment  operates  to  take  an  oral 
contract  for  the  sale  of  goods  for  the  price  of  150  or  more  out  of 
the  statute  only  when  it  is  made  at  the  time  of  the  contract  ; 
that  payment  subsequently  made,  although  conforming  to  the 
oral  agreement,  is  insufficient  of  itself  to  make  the  prior  oral 
agreement  valid.  There  must  be  enough  in  addition  to  the  act 
of  payment,  where  this  is  not  made  strictly  at  the  time  of  the 
oral  contract,  to  show  that  the  terms  of  the  prior  oral  contract 


1  See  supra,  p.  275,  n.  2. 

'■*  Finch,  J.,  in  delivering  the  judg- 
ment of  the  majority  of  the  New  York 
Court  of  Appeals,  says  :  "But  it  is  now 
objected  that,  conceding  the  fact  of  such 
restatement,  there  was  no  payment  of  any 
part  of  the  purchase-money  at  that  time. 
It  is  admitted  that  the  check  was  then 
given,  and  it  cannot  be  successfully  denied 
that  it  was  both  delivered  and  received  as 
a  payment  upon  the  contract  price  of  the 
hops  ;  but  it  is  claimed  that  the  check  was 
not,  in  and  of  itself,  payment,  and  having 
been  drawn  upon  a  bank,  could  not  have 
been  in  fact  paid  until  afterward,  and  so 
there  was  no  payment  '  at  the  time '  to 
satisfy  the  requirements  of  the  statute. 
It  is  quite  true  that  a  check,  in  and  of  it- 
self, is  not  payment,  but  it  may  become 
so  when  accepted  as  such,  and  in  due 
course  actually  paid.  While  not  money, 
it  is  a  thing  of  value,  and  is  money's  worth 
when  drawn  against  an  existing  deposit 
which  remains  until  the  check  is  presented. 
We  must  assume  that  the  check  of  the 
vendee,  in  this  case,  was  good  when  drawn, 
and  was  duly  paid  upon  presentation  in 
the  usual  and  regular  way,  for  it  appears 
in  the  possession  of  the  drawers,  and  they 
practically  assert  the  fact  of  its  payment 
by  their  counter-claim  in  the  action,  by 
which  they  seek  to  recover  back  the  money 
so  paid.  There  was,  therefore,  an  actual 
and  real  payment  made  by  the  vendees  to 
the  vendor,  upon  the  purchase-price  of  the 
hops.  It  is  said,  however,  that  the  actual 
payment  of  the  money,  as  distinguished 
from  the  delivery  of  the  check,  was  not 


'at  the  time'  of  the  contract,  but  at  some 
later  period.  We  do  not  know  accurately 
when  the  check  was  paid.  It  may  have 
been  the  same  day.  It  may  have  been 
within  a  very  few  moments.  It  may  not 
have  been  till  the  next  day.  We  are  not 
to  presume,  for  the  purpose  of  making  the 
contract  invalid,  that  it  was  held  beyond 
the  natural  and  ordinary  time.  In  such 
event,  it  is  a  very  narrow  construction  to  say 
that  the  payment  was  not  made  at  the  time 
of  the  contract.  The  purpose  and  object 
of  the  statute  should  not  be  forgotten.  Its 
aim  is  to  substitute  some  act  for  mere  words, 
to  compel  the  verbal  contract  to  be  accom- 
panied by  some  fact  not  likely  to  be  mis- 
taken, and  so  avoid  the  dangers  of 
treacherous  memory  or  downright  perjury. 
Indeed,  it  would  be  an  entirely  reasonable 
and  just  construction  to  say  that  the  de- 
livery of  tiie  check  and  its  presentment 
and  payment,  constituted  one  continuous 
transaction,  and  should  be  taken  as  such 
without  reference  to  the  ordinary  delay 
attendant  upon  turning  the  check  into 
money.  The  statute  does  not  mean  rig- 
orously, eo  instanti.  It  does  contemplate 
that  the  contract  and  the  payment  shall 
be  at  the  same  time,  in  the  sense  that  they 
constitute  parts  of  one  and  the  same  con- 
tinuous transaction.  We  think,  therefore, 
there  was  a  payment  '  at  the  time  '  within 
the  meaning  of  the  statute,  and  that  the 
contract  of  sale  was  valid."  Artcher  v. 
Zeh,  5  Hill,  200  ;  Hawley  v.  Keeler,  53 
N.  Y.  114;  Bissell  v.  Balcom,  39  N.  Y. 
275. 

8  101  N.  Y.  515. 


PART    v.]  EARNEST    OR    PART    PAYMENT.  299 

were  then  in  the  minds  of  the  parties,  and  were  reaffirmed  by 
them  ;  and  this  being  shown,  a  cause  of  action  arises,  not  on  the 
prior  oral  contract,  but  on  the  new  contract  made  at  the  time  of 
payment.  So,  after  much  fluctuation,  the  law  is  now  firmly 
established  on  a  sound  and  intelligent  basis.^ 

The  Wisconsin  Statute  of  Frauds  ^  is  to  the  same  effect  as  that 
of  New  York,  and  the  same  construction  is  placed  upon  that 
statute  as  is  now  the  settled  law  in  New  York.  In  Bates  v. 
Chesebro  ^  a  verbal  contract  was  made  in  September,  for  the  sale 
of  broom-corn  to  the  amount  of  $1200  to  $1400.  Evidence  was 
given  to  show  a  payment  by  the  vendee,  in  December  following, 
of  $4:1  on  account  of  the  contract.  On  the  trial  the  court  charged 
that  if  the  verbal  agreement  were  still  existing  at  the  time  of  the 
payment  of  the  $47,  and  the  vendee  paid  and  the  vendor  received 
the  sum  as  part  of  the  purchase-money,  tiie  contract  was  rendered 
valid.  The  Supreme  Court  held  that  this  was  a  misdirection ; 
that  the  statute  makes  it  essential  that  the  earnest-money  must 
be  paid  at  the  time  the  contract  was  made,  and  that  part  payment 
made  at  some  subsequent  time,  without  anything  further,  will  not 
validate  the  contract.  The  law  is  laid  down  in  substantially  the 
same  way  as  in  the  latest  and  well-decided  New  York  cases,  the 
reasoning  in  wliich  is  approved  and  adopted.^ 

Bates  V.  Chesebro,  above  stated,  came  up  again,°  when  evidence 
of  a  conversation  between  the  parties  at  the  time  of  the  payment 
of  the  $47,  on  the  14th  December,  was  relied  on  as  a  sufficient 
restatement  of  the  contract  to  make  the  part  payment  then  a 
payment  "  at  the  time  "  of  the  making  of  the  contract.  The 
Wisconsin  Supreme  Court,  with  a  more  rigid  construction  of  the 
statute  than  that  of  the  New  York  Court  of  Appeals,  under  a 
very  similar  state  of  facts,  in  Bissell  v.  Balcom,^  held  that  if  a 
valid  contract  is  made  at  all,  it  must  be  made  at  the  time  the 
money  is  paid  and  received  ;  as  the  payment  of  some  earnest- 
money  then  is  an  essential  requisite  of  the  contract.  Hence  that 
a  void  contract  cannot  be  rendered  valid  simply  by  the  subse- 
quent part  payment ;  that  when  such  a  payment  is  relied  on,  it 
must  appear  that  the  parties  understood  and  agreed  upon  the 
terms  of  the  contract  at  the  time  of  payment,  so  as  to  make  the 
payment  apply  on  a  present  contract,  and  not  upon  some  past 

^  See  Allen  v.  Aquino,  5  N.  Y.  Leg.  sale,  and  as  a  part  of  the  purchase-price  of 

Obs.  380.  the  goods,  agrees  to  pay,  and  docs  after- 

2  R.  S.  c.  107,  §  3.  wards  pay,  a  debt  of  tlie  vendor,  this  docs 

8  32  Wis.  594.  not  take  the  snle  out  of  the  statute." 
*  Bates  V.  Chesebro,  32  Wis.  594,  was  &  I5ates  v.  Chesebro,  36  Wis.  636,  2d 

affirmed  in  Paine  v.  Fulton,  34  Wis.  83,  case. 

the   head-note   of  which    latter   case   is  :  6  39  jj.  Y.  275. 

"Where  the  vendee,  at  the  time  of  the 


300  COMMENTARIES   ON   SALES.  [BOOK    IV. 

voul  agreement.  The  court  also  held  that  although  the  jury 
found  that  the  parties  knew  and  fully  understood,  when  the  %47 
was  paid  in  December,  that  the  previous  parol  arrangement  for 
the  sale  of  the  broom-corn  was  not  binding,  and  that  the  money 
was  then  paid  and  received  for  the  purpose  of  making  that  ar- 
rano-ement  valid  and  obligatory  at  law,  the  establishment  of  these 
facts  would  be  insufficient  to  make  a  valid  contract. 

But  though,  on  very  much  the  same  state  of  facts,  there  is  an 
apparent  difference  between  the  holding  of  the  Supreme  Court  of 
Wisconsin  in  Bates  v.  Chesebro  ^  and  that  of  the  New  York  Court 
of  Appeals  in  Bissel  v.  Balcom,^  they  are  reconcilable  on  the 
ground  that  in  both  of  them  the  question  really  was  whether  or 
not  at  the  time  of  the  payment  there  was  such  a  meeting  of  the 
minds  of  the  parties  with  respect  to  the  contract  as  to  make  it  a 
new  contract  at  that  time,  even  though  all  the  terms  of  the  con- 
tract were  not  verbally  recited.^  And  in  the  Wisconsin  case, 
after  holding  as  we  have  stated,  the  court  continue  :  "  Because  it 
was  essential  that  the  minds  of  the  parties  should  then  meet  as 
to  the  terms  and  conditions  of  a  contract,  so  as  to  form  and  make 
one.  True,  this  might  be  done  by  referring  to  the  previous  oral 
agreement,  and  by  adopting  and  assenting  to  that  agreement  as 
the  new  contract.  If  the  minds  of  the  parties  met  and  assented 
to  the  tej-ms  and  conditions  of  the  prior  agreement,  then  the  stat- 
ute would  be  satisfied,  because  a  complete  contract  would  be  en- 
tered into  at  the  time  part  of  the  purchase-price  was  paid.  And 
the  real  question  therefore  was,  did  the  parties,  on  the  14th  of 
December,  make  a  new  contract  by  referring  to,  adopting,  and 
confirming  the  terms  of  the  previous  void  agreement  ?  Did  their 
minds  meet,  upon  the  subject  of  the  contract  of  sale,  and  was  the 
$47  paid  upon  this  new  contract  ?  If  so,  there  was  a  valid  con- 
tract entered  into  which  can  be  enforced  ;  otherwise  there  was 
not." 

And  this  is  substantially  the  ground  upon  which  Bissel  v. 
Balcom*  and  the  later  New  York  cases  were  decided,  although 
there  are  some  references  in  some  of  these  to  Bissel  v.  Balcom  ^ 
which,  as  isolated  expressions,  would  rather  imply  an  antagonism 
between  Bissel  v.  Balcom ^  and  Bates  v.  Chesebro'  which  does 
not  really  exist. 

The  decisions  in  Bates  v.  Chesebro  ^  were  acted  on  in  Pike  v. 
Vaughn  ,9  where  there  was  a  contract  for  the  sale  of  logs  in  the 

^  36  Wis.  636,  2d  case.  6  /j^ 

2  39  N.  Y.  275.  6  n^ia. 

2  See  Bissell  v.  Balcom,  39  N.  Y,  at  7  3g  w^js.  636. 

pp.  285,  286.  s  32  wis.  594  ;  36  Wis.  636. 

*  39  N.  Y.  275.  9  39  Wis.  499. 


PART  v.]  EARNEST  OR  PART  PAYMENT.  301 

fall  of  1873,  on  which,  from  that  time  down  to  March,  1874, 
goods,  provisions,  and  supplies  were  furnished  to  the  amount  of 
$1300  or  '$1400,  and  from  that  time  down  to  August,  1874,  over 
il700  additional  was  paid  in  money  and  goods,  on  account  of  the 
logs.i 

Hanson  v.  Roter  ^  is  another  case  in  which  it  was  decided  that  a 
payment  made  on  account  of  an  oral  contract,  invalid  by  the  Stat- 
ute of  Frauds,  would  not  render  the  contract  valid,  the  payment 
not  having  been  made  at  the  time  of  the  making  of  the  contract. 
Prior  to  the  decision  of  this  case  (a.  d.  1885),  an  act  "  relative  to 
the  sale  of  personal  property  "  was  enacted  by  the  Wisconsin  legisla- 
ture, which  in  terms  provides  that  "No  contract  for  the  purchase, 
sale,  transfer,  or  delivery  of  personal  property  to  be  delivered 
and  paid  for  at  a  future  day  or  period,  shall  be  void  when  either 
the  buyer  or  seller  shall  in  good  faith  intend  to  perform  the  con- 
tract." The  act  declares  that  "  Any  act  or  part  of  an  act  con- 
flicting with  this  act  is  hereby  repealed."  ^  It  was  claimed  in 
Hanson  v.  Roter  *  that  this  act  repealed  the  Wisconsin  Statute  of 
Frauds  ;  and  this  was  rather  acceded  to  by  the  court,  which  held, 
however,  that  the  act  of  1883  did  not  affect  Hanson  v.  Roter, 
because  the  contract  in  that  case  was  made  before  the  act  of  1883 
was  enacted. 

In  the  later  case  (a.  d.  1887)  of  Kerkhof  v.  The  Atlas  Paper  Co.,^ 
where  it  was  again  held  that  a  subsequent  payment  on  account  of  a 
parol  contract,  void  under  the  Statute  of  Frauds,  did  not  render  the 
contract  valid,  it  was  claimed  that  the  act  of  1883  had  repealed 
the  Statute  of  Frauds.  The  court  were  of  the  opinion  that  it  was 
never  intended  by  the  legislature  to  have  any  such  sweeping 
effect.  They  also  took  the  position,  as  the  act  excluded  "  extrin- 
sic evidence  that  such  contract  had  any  other  inteiit  or  mean- 
ing than  expressed  or  stipulated  thereby,"  that  this  showed  that 
the  act  was  intended  only  to  apply  to  written  contracts.  But 
we  think  that  the  intent  or  meaning  of  a  contract  may  be  as 
well  "  expressed  or  stipulaicd,^^  where  the  contract  is  oral  as 
where  it  is  written.  We  can  see,  on  this  ground,  no  intelligent 
distinction.^ 

1  And  see  Mason  v.  The  H.  "Witbeck  ham  v.  Meighan,  55  Wis.  354,  which 
Company,  35  Wis.  164  ;  Bacon  v.  Eccles,  were  decisions  on  gaming  contracts.  As 
43  Wis.  227.  the  contract  in  this  latter  case  was,  appar- 

2  64  Wis.  622.  ently,  merely  oral,  if  the  act  was  intended 
2  Laws  of  Wisconsin  for  1883,  p.  65     to  apply  only  to  written   contracts,   the 

c.  81,  §§  1,  2.  intention  to  obviate  the  decision  in  Ever- 

*  64  Wis.  622.  inghani  v.  Meighan,  55  Wis.  354,  seems 

*  68  Wis.  674.  not  to  have  been  etlectually  accomplished. 
®  The  court  also  say  that  the  act  was  We  think  that  the  net,  on  its  very  face, 

passed  to  obviate  the  decisions  in  Barnard  renders  valid  oil  mntracls  for  the  purchase, 
V.    Backhaus,  62  Wis.  593,  and  Evering-     sale,  transfer,  or  delivery  of  personal  prop- 


302 


COMMENTARIES   ON   SALES. 


[book   IV. 


In  Gault  V.  Brown,^  an  oral  contract  for  the  sale  and  delivery 
of  wood  of  the  value  of  upwards  of  $33,  to  be  paid  for  as  deliv- 
ered invalid  when  made,  was  held  to  be  an  entire  contract,  and 
the  payment  for  part  of  the  w^ood  on  its  receipt  took  the  case  out 
of  tlie  statute  as  to  the  undelivered  part.^ 

In  Bifff)"  V.  Whisking  ^  it  was  held,  that  whether  a  transaction 
amounts  to  one  entire  contract  or  to  several,  so  that  any  part 
payment  or  delivery  may  satisfy  the  Statute  of  Frauds  as  to  the 
whole,  depends  upon  the  circumstances  of  each  case ;  and  it  is 
not  necessarily  conclusive  because  the  transaction  takes  place  at 
the  same  time  and  place,  or  at  different  times  and  places.  If  the 
result  of  various  bargains  at  diiferent  times  and  places,  but  in  the 
course  of  the  same  transaction,  be  reduced  into  writing,  and 
signed  by  one  party  in  the  presence  of  the  other,  and  the  mem- 
orandum is  given  to,  though  not  signed  by  him,  that  is  evidence 
that  the  contract  was  joint  and  entire ;  although,  as  against  the 
party  who  did  not  sign  it,  it  may  not  be  per  se  binding  under 
the  statute,  it  may  be  made  so  by  part-payment  or  part-delivery 
of  any  of  the  goods  comprised  within  it,  and  then  the  written 


erty  to  be  delivered  and  paid  for  at  a 
future  day,  wheu  either  the  buyer  or  seller 
shall  in  good  faith  intend  to  perform  the 
contract ;  and  that  all  such  contracts 
"and  all  collateral  contracts,  agreements, 
or  securities  growing  out  thereof,  or  of 
which  they  may  have  formed  the  consid- 
eration in  whole  or  in  part,"  are  to  be 
"deemed  legal  and  valid  to  all  intents 
and  purposes ; "  the  act  to  apply  to  all 
cases  except  only  where  they  are  vitiated 
by  fraud,  or  where  the  contract  is  without 
sufficient  consideration,  or  where  both  the 
parties  to  the  contract  intended  to  make 
a  wagering  contract.  And  as  all  acts  or 
parts  of  acts  conflicting  with  this  act  were 
repealed,  and  as  the  Wisconsin  statute  of 
frauds  does  interfere  with  this  act,  plainly 
and  radically,  we  think  it  was  expressly 
repealed.  The  language  of  the  act,  we 
think,  is  too  clear  to  admit  of  any  ques- 
tion as  to  its  meaning.  And  as  Lord 
Denman  said  in  Rickman  v.  Carstairs,  5 
B.  &  Ad.  663,  "  the  question  in  this  and 
other  cases  of  construction  of  written  in- 
struments is,  not  what  was  the  intention 
of  the  parties,  but  what  is  tlie  meaning  of 
th^  words  they  have  used."  And  when 
this,  on  the  face  of  a  statute,  as  on  the 
face  of  a  will,  deed,  or  other  instrument, 
is  as  clearly  expressed  as  it  seems  to  us  to 
be?  in  the  Wisconsin  act  of  1883,  we  think 
the  principle  laid  down  in  Dwarris  on 
Statutes,  p.  557,  applies,  and  that  "  courts 
are  bound  to  give  it  eff'ect,  whatever  may 
be  their  opinion  of  its  wisdom  or  policy," 


The  mere  act  of  inserting  in  the  statutes 
of  New  York,  Wisconsin,  and  some  of  the 
other  States,  the  words  "  at  the  time," 
with  reference  to  the  payment  of  earnest 
to  take  the  case  out  of  the  sta,tute,  has,  as 
we  have  seen,  introduced  a  new  element  of 
confusion  in  those  States,  in  connection 
with  the  law  of  sales.  With  the  diffi- 
culty staring  them  in  the  face  which  the 
absolute  sweeping  awaj^  of  that  statute 
would  produce,  we  are  not  surprised  that 
the  Supreme  Court  of  Wisconsin  sought 
for  some  construction  of  the  Wisconsin 
act  of  1883,  which  would  have  a  less 
"sweeping  effect"  than  that  which  in- 
volved the  total  repeal  of  the  statute  of 
frauds  in  that  State.  But  whatever  may 
have  been  their  opinion  of  its  "wisdom 
or  policy,"  we  think  the  proper  construc- 
tion of  the  act  of  1883  is,  as  was  con- 
tended and  in  effect  admitted  in  Hanson 
V.  Roter,  64  Wis.  622,  625,  to  render  valid 
all  bond  fide  contracts  "for  the  purchase, 
sale,  transfer,  or  delivery  of  personal  prop- 
erty to  be  delivered  and  paid  for  at  a 
future  day  or  period,"  in  Wisconsin,  since 
the  coming  into  force  of  that  act ;  and 
that  their  statute  of  frauds  and  all  other 
acts  or  parts  of  acts  conflicting  with  the 
act  of  1883  were  repealed. 

1  48  N.  H.  183. 

2  See  Baldy  v.  Parker,  2  B.  &  C.  37  ; 
Elliott  V.  Thomas,  3  M.  &  W.  170 ;  Gil- 
man  V.  Hill,  36  N.  H.  311. 

3  14  C.  B.  195. 


PART  v.]  EARNEST  OR  PART  PAYMENT.  303 

memorandum  is  evidence  of  the  contract  against  him.  Thus,  in 
an  action  for  the  price  of  timber  bargained  and  sold,  it  appeared 
that  the  defendant  had  proposed  to  meet  the  plaintiff  to  purchase 
timber;  and,  having  met  him,  had  gone  with  him  to  several 
places,  some  miles  apart,  but  all  on  the  same  day,  purchasing  lots  of 
timber  at  each  place,  at  separate  prices,  —  the  amount  in  each  case 
being  above  £10,  —  and  that  then  the  plaintiff  had,  at  the  defend- 
ant's proposal,  made  a  memorandum  of  these  bargains,  signing  it, 
and  giving  it  to  the  defendant.  Some  of  the  timber  had  been  de- 
livered and  received,  and  payments  had  been  made  generally  on 
account.  The  defendant  refused  to  receive  the  residue,  and  had 
made  no  payments  on  account  of  it ;  it  not  appearing  from  what 
particular  lots  the  timber  received  or  that  refused  had  come.  It 
was  held  that  the  contract  was  one  and  entire ;  and  therefore 
that  the  statute  was  satisfied  by  payment  or  part-delivery  of  any 
of  the  timber.i 

Fifty-two  head  of  cattle  were  sold  by  the  plaintiff  to  the  de- 
fendant, —  fifty  at  one  price,  and  two  at  another ;  the  two  to  be 
delivered  the  week  succeeding  the  sale,  and  the  fifty  at  different 
intervals  thereafter.  The  two  were  delivered  to  the  defendants, 
who  refused  to  receive  the  remainder.  The  court  held  that 
although  the  contract  at  the  time  it  was  made  was  void  under  the 
Statute  of  Frauds,  still  it  was  good  as  a  proposition  of  price,  and 
a  subsequent  delivery  and  acceptance  of  tvvo  of  the  cattle  (and  a 
part  payment  of  the  price  would  have  had  the  same  effect)  one 
week  after  the  contract  was  made,  without  any  change  of  its 
terms,  and  under  the  proposition  or  offer,  made  it  binding,  and 
took  the  case  from  under  the  operation  of  the  statute. ^ 

But  there  must  be  an  actual  payment,  no  matter  what  the  sub- 
ject of  the  payment  may  be,  —  whether  money  or  money's  worth. 
If  the  part  payment  is  in  other  goods,  there  must  be  a  delivery  of 
the  goods  ;  if  a  debt  or  claim  by  the  vendee  against  the  vendor, 
there  must  be  an  actual  extinguishment  of  the  debt  or  claim. 
The  matter  must  not  be  left  in  fieri? 

1  Bigg  V.  Whisking,  14  C.  B.  195.  v.  Dunlap,  1  Seld.  137  ;  Scott  <-.  Eastern 
^  Rickey  v.  Tenbroeck,  63  Mo.  563.  Counties  Ry.  Co.,  12  M.  &  W.  33  ;  Cuff 
In  Sprague  v.  Blake,  20  Wend.  63,  Cowan,  v.  Penn,  1  M.  &  S.  21  ;  Boutwell  v. 
J.,  said  :  "The  part  delivery  need  not  be  O'Keefe,  32  Barb.  434  ;  Stone  v.  Rogers, 
at  the  time  of  the  contract.  An  oral  agree-  2  M.  &  W.  443;  Lovelock  v.  Franklyn, 
ment  may  stand  for  a  mutual  agreed  prop-  8  Q.  B.  371  ;  Davis  v.  Ea.stnian,  1  Allen, 
osition,  and  unless  revoked,  the  subsequent  422  ;  Cha[ilin  v.  Rogers,  1  East,  192  ;  Car- 
acceptance  of  part  of  the  goods  which  ter  v.  Touissaint,  5  B.  &  Aid.  855  ;  Vin- 
were  the  subject  of  oral  negotiation  will  cent  v.  Germand,  11  Johns.  283  ;  Sprague 
make  it  binding."  And  see  Hart  v.  Satt-  v.  Blake,  20  Wend.  61  ;  Davis  v.  Moore, 
ley,  3  Camp.  528 ;  Jennings  v.  Wheeler,  13  Me.  424. 
7  Cow.  256,  262  ;  8  Wend.  307,  400  ;  3  See  ante,  p.  275,  note  2. 
Marsh  v.  Hyde,  3  Gray,  331  ;  McKnight 


304  COMMENTARIES   ON   SALES.  [bOOK   IV. 

Where  there  is  an  agreement  to  take  goods  in  part  payment, 
when  they  are  taken  on  tliat  agreement  they  are  part  payment 
whether  under  the  Statute  of  Limitations  or  the  Statute  of 
Frauds.^  In  Williams  v.  Griffiths,^  to  take  the  case  out  of  the 
Statute  of  Limitations,  it  was  held  that  there  must  be  a  part 
payment  in  cash,  or  what  is  equivalent  to  it,  to  have  that  effect. 
An  airreement  that  one  claim  should  go  against  another,  without 
anything  further  in  the  way  of  the  cancellation  of  the  respective 
claims,  will  not  do.^ 

In  Hooper  v.  Stephens,*  where  a  bottle  of  gin  was  delivered 
and  accepted  as  a  payment  on  a  previous  debt,  the  court  held  that 
where  anything  is  received,  upon  agreement,  in  reduction  of  a 
debt,  that  is  payment. 

Where  a  purchase  of  personal  property  is  made  by  A.  from  B., 
A.  agreeing  to  pay  C.  a  debt  due  him  by  B.,  and  does  so,  this  is  a 
good  payment  under  the  statute  to  bind  the  bargain,  the  promise 
thus  having  become  one  to  pay  A.'s  own  debt,  and  is  not  void  as 
the  promise  to  pay  the  debt  of  another.^  But  as  the  statute  re- 
quires that  the  purchaser  shall  pay  some  part  of  the  purchase- 
money,  a  mere  promise  to  pay  a  debt  of  the  vendee  is  not 
sufficient.'' 

And  where  the  vendee  is  indebted  to  the  vendor  on  a  prior 
transaction,  where  a  purchase  was  made,  the  price  to  be  paid  by 
crediting  the  amount  of  the  vendor's  indebtedness,  and  no  act 
w^as  done  to  carry  it  out,  this  is  no  payment.  There  must  be  an 
actual  application  made  of  the  prior  indebtedness  by  a  receipt,  or 
by  crediting  it  in  some  manner.'^ 

Where  A.  was  indebted  to  B.  on  a  mortgage  of  horses  for  $500, 
and  B.  bought  the  horses  for  8300,  which  amount  was  to  be 
credited  on  the  mortgage,  but  this  was  not  in  fact  done,  it  was 
held  that  this  was  no  payment  of  the  purchase-money  of  the  horses 
within  the  statute.^ 

In  Brabin  v.  Hyde  ^  the  defendant  purchased  a  horse  for  $175 
from  A.,  who,  at  the  time,  was  indebted  to  the  defendant  in  a 

1  See  Hart  v.  Nash,  1  C.  M.  &  R.  337.  of  consideration,  which  is  money  or  mon- 

2  1  C.  M.  &  E.  45.  ey's  worth.  But  the  object  of  the  statute 
Hid.  was  to  have  something  pass  between  the 
4  A.  &  E.  71.  parties  besides  mere  words  ;  some  symbol, 

5  Cotterill   v.    Stevens,  10   "Wis.    422.  like  earnest-money.     But  where  there  is 

See  Emerick  v.  Sanders,  1  Wis.  77 ;  Bar-  simply  an  agreement,  which  has  not  been 

ker    V.    Bucklin,   2   Den.   45  ;    Farley  v.  acted  "on  by  an  execution  of  the  promise, 

Cleveland,  4  Cow.  432  ;  Arnold  v.  Lyman,  everything  lying  in  parol,  the  statute  is 

17  Mass.  400  ;  Cabet  v.  Harkins,  3  Pick,  not  satisfied.     Ibid. 

91  ;  Crocker  v.  Higgins,  7  Conn.  341.  7  Clark    v.    Tucker,    2    Sandf.    157  ; 

^  Artcher  v.  Zeh,  5   Hill,  200.     Here  Shindler  v.  Houston,  1  Comst.  261. 

the  court  said  that  no  doubt  the  statute  ^  yjy.  j,   Qrmsby,  12  Barb.  570. 

must  be  taken,  in  its  spirit,  to  mean  any-  9  30"  Barb.  265. 
thing  or  part  of  anything  given,  by  way 


PART  v.] 


EARNEST  OR  PART  PAYMENT. 


305 


larger  sum  than  -1175.  It  was  agreed  between  them  that  the  $175 
should  be  credited  to  A.  in  defendant's  books.  The  defendant 
then  went  to  his  own  residence,  which  was  about  a  mile  from 
where  he  had  made  the  purchase,  and  immediately  credited  the 
|il75  on  his  books.  The  court  below  held  that  the  contract  was 
void  by  the  New  York  Statute  of  Frauds.^ 

In  Mattice  v.  Allen,^  where  the  parties  were  negotiating  a 
sale  of  barley,  and,  before  consummating  the  sale,  the  plaintiff 
borrowed  <|40  from  the  defendant's  agent,  which  it  was  then 
agreed  between  them  should  be  applied  upon  the  sale  of  the  barley 
if  they  concluded  a  bargain  therefor.  A  few  days  afterwards  they 
concluded  such  bargain,  when  it  was  agreed  that  the  $40  should 
be  applied  on  the  contract.  The  New  York  Supreme  Court  here 
held,  that  this  was  a  payment  at  the  time,  sufficient  to  take  the 


^  But  the  Supreme  Court  of  New  York 
reversed  this  decision.  Johnson,  J.,  in 
delivering  the  judgment,  said:  "This  was 
a  complete  execution  and  performance  of 
the  contract  on  the  part  of  the  defendant. 
The  contract  was  by  parol,  and  was  not 
binding  until  the  price  agreed  upon  was 
paid.  The  statute  declares  such  a  con- 
tract void,  unless  the  buyer  shall  accept 
and  receive  the  goods,  or  some  part  thereof, 
or  shall  at  the  time  pay  some  part  of  the 
purchase-money.  Here  the  agreement  and 
credit  were  obviously  all  one  transaction. 
The  time  was  continued  until  the  credit 
was  given,  as  the  parties  evidently  con- 
templated that  the  defendant  was  to  go 
where  his  books  were  kept,  before  entering 
the  credit.  It  must  be  therefore  regarded 
as  a  payment  made  at  the  time,  within  the 
meaning  of  the  .statute."  On  these  prem- 
ises we  think  the  decision  was  correct, 
although  it  was  subsequently  reversed  on 
appeal.  But  we  think,  while  the  follow- 
ing is  a  perfectly  correct  exposition  of  the 
law  under  the  English  statute,  and  similar 
statutes,  it  is  not,  as  we  have  seen  (see 
ante,  p.  286  et  scq.),  correct  as  applicable 
to  such  statutes  as  those  of  New  York, 
Wisconsin,  and  some  of  the  other  States, 
where  the  yjayment  has  to  be  made  "  at 
the  time"  of  the  making  of  the  contract. 
Johnson,  J.,  says  further  :  "  The  moment 
payment  is  made,  in  pursuance  of  the 
agreement,  the  transaction  is  taken  out  of 
the  statute,  even  if  it  was  within  it  be- 
fore. It  may  be  true  that  as  long  as  the 
agreement  rested  in  mere  words,  the  ven- 
dor might  have  put  an  end  to  it  by  rescis- 
sion, or  giving  the  ilefendnnt  notice  that  he 
would  not  be  bound  or  pcrlbrm  on  his  part. 
But  having  waited  until  the  act  of  giv- 
ing the  credit  agreed  ujion  was  performed, 
he  was  bound  by  the  bargain,  and  could 
not  thereafter  treat  it  as  a  nullity.  Tlie 
VOL.  II.  20 


cases  of  Artcher  v.  Zeh,  5  Hill,  200  ; 
Clark  V.  Tucker,  2  Sandf.  157  ;  Ely  v. 
Ormsby,  12  Barb.  570  ;  and  Walker  v. 
Hussey,  16  M.  &  W.  301,  hold  that  where 
goods  are  purchased,  to  be  applied  in  pay- 
ment of  a  precedent  debt,  by  indorsement 
or  credit,  the  payment  is  not  made,  within 
the  contemplation  of  the  statute  of  frauds, 
until  the  indorsement  is  actually  made,  or 
the  credit  given,  or  the  goods  are  received 
in  payment.  But  these  cases  all  concede 
that  when  the  agreement  is  consummated 
by  the  act  of  indorsement,  or  entry  of  the 
credit,  according  to  the  agreement,  the 
transaction  is  no  longer  within  the  statute. 
As  long  as  such  transaction  rests  in  mere 
words,  it  is  void,  but  is  valid  the  moment 
the  act  of  giving  the  credit  is  performed 
by  the  buyer."  Brabin  v.  Hyde,  30  Barb. 
267,  268.  We  think  this  whole  reasoning 
is  opposed  to  the  position  of  the  court  in 
this  case,  that  an  agreement  to  pay  or  to 
give  a  credit,  which  is  only  acted  on  at  a 
subsequent  period,  is  really  a  payment 
made  "  at  the  time  "  of  the  making  of  the 
contract.  It  is  clearly  not  law,  and  is  not 
sustained  by  the  later  cases.  See  ante, 
286  et  seq.  The  principle  applicable  to 
statutes  like  that  of  New  York  is  precisely 
the  same  as  that  applicable  to  the  i)rovision 
in  stamp  acts  requiring  the  act  of  stamp- 
ing to  be  at  the  time  of  the  making,  ac- 
cepting, etc. ,  of  the  promissory  note  or  bill 
of  exchange  ;  the  subsequent  stamping  in- 
volving the  penalty.  There  is  nothing  in 
either  case  to  prevent  the  issuing  a  new 
bill  or  note,  or  the  making  of  a  new  con- 
tract. But,  in  the  absence  of  tliis,  the  non- 
stamping  of  the  note  or  bill  at  the  time  of 
the  making  or  accepting,  causes  the  disa- 
bilities of  the  act  to  attach  to  it,  as  the  non- 
payment on  the  contract  of  sale  "  at  the 
time  "  of  its  making,  renders  the  sale  void. 
2  33  Barb.  543. 


306  COMMENTARIES   ON   SALES.  [BOOK   IV. 

case  out  of  the  statute.  The  plaintiff  had  |40  in  hand  of  bor- 
rowed money  payable  on  demand,  which  was  expressly  received 
as  a  contingent  advance  upon  the  barley,  and  was  subsequently 
applied  as  part  payment  therefor  upon  the  consummation  of  the 
sale.  The  court  held  this  was  received  as  payment  on  the  con- 
tract, and  was  to  be  deemed  in  fact  as  a  conclusive  and  definite 
payment  thereon  for  all  purposes. 

\Ve  consider  these  two  cases  ^  both  about  as  extreme  cases  as 
can  be  imagined;  and,  on  the  assumption  of-  the  court  in  the 
former  case,  that  virtually  (if  not  eo  instanti,  at  the  closing  of  the 
case)  while  the  contract  was  pending,  the  credit  was  actually 
made  in  the  vendor's  account,  on  the  vendee's  books,  we  would  be 
inclined  to  think  that  that  case  was  well  decided,  on  the  same 
principle  that  an  actual  indorsement  by  the  vendee  on  the  ven- 
dor's promissory  note,  of  which  the  vendee  was  the  holder,  would 
be  a  good  payment.  But  both  of  these  cases  were  reversed  on 
appeal. 

In  Brabin  v.  Hyde^  it  appears,  on  appeal,  that  the  vendee's 
entry  of  the  credit  was  not  in  his  day-book  or  ledger,  or  in  any 
book  that  he  kept  for  the  purposes  of  his  business,  or  in  any 
account  of  his  daily  transactions,  but  upon  the  blank  leaf  of  a 
book  by  itself  inaccessible  to  the  vendor,  if  not  to  all  other  per- 
sons, and  the  vendee  never  communicated  this  entry  to  the  vendor 
or  to  any  one  else.  The  court  held  that  this  was  not  sufficient  to 
establish  the  fact  of  a  payment  having  been  made  by  the  vendee 
to  the  vendor,  and  was  a  very  different  case  from  that  of  an 
indorsement  on  a  note  which  would  operate  effectually  as  an 
extinguishment  of  the  note  pro  tanto  ;  that,  in  effect,  there  should 
be  at  the  time  of  the  contract  some  act  of  payment  of  a  conclu- 
sive character,  not  resting  in  agreement  or  in  mere  words. 

So,  in  reversing  Mattice  v.  Allen,^  the  Court  of  Appeals  treated 
that  case,  like  that  of  Brabin  v.  Hyde,^  as  a  case  of  prior  indebted- 
ness, with  a  mere  agreement  to  apply  such  indebtedness  as  a 
payment  on  the  contract  of  sale,  but  resting  merely  in  words 
unaccompanied  by  the  necessary  act  to  make  it,  in  fact,  constitute 
a  payment. 

These  cases,  of  course,  being  on  the  question  as  to  whether 
what  was  done  in  them  amounted  to  a  payment,  are  applicable  to 
statutes  whether  they  do  or  do  not  contain  the  words,  "  at  the 
time,"  of  the  New  York,  Wisconsin,  and  some  other  State  stat- 
utes.    So,  in  Teed  v.  Teed,^  there  was  an  oral  contract  for  the 

1  Brabin  v.  Hyde,  30  Barb.  267,  268,  8  3  Abb.  App.  Dec.  248 :  3  Keyes.  492. 
and  Mattice  v.  Allen,  33  Barb.''543.  *  32  N    Y   519 

2  32  N.  Y.  519.  5  44  Barb."  96.  ' 


PART  v.]  EARNEST  OR  PART  PAYMENT.  307 

purchase  of  butter  of  the  value  of  over  -flOO,  and  at  the  time 
the  defendant  was  indebted  to  the  plaintiff  in  the  sura  of  '16.50, 
for  a  barrel  of  flour,  wliich  was  charged  in  the  plaintiff's  account- 
book  to  the  defendant.  At  the  time  the  contract  was  made  for 
the  butter,  it  was  agreed  that  the  price  of  the  flour  should  be  a 
j^ayment  on  account  of  the  butter,  and  the  plaintiff  made  a  memor- 
andum to  that  effect  in  his  memorandum  book.  But  the  court 
held  that  this  was  not  sufficient ;  the  entry  should  have  been 
made  on  his  account-book,  to  constitute  it  a  payment,  so  as  to 
have  cancelled  the  charge  for  the  flour.  That  is,  the  act  to  be 
constituted  a  payment  must  act  as  an  extinguishment  of  the  debt.^ 

The  seventeenth  section  of  the  English  statute  implies  that,  to 
bind  a  buyer  of  goods  of  XIO  value,  where  there  has  been  no 
delivery  and  no  writing,  he  must  have  done  two  things ;  first, 
made  a  contract,  and  next,  he  must  have  given  something  as 
earnest,-  or  in  part  payment  or  discharge  of  his  liability.  But 
where  one  of  the  terms  of  an  oral  bargain  is  for  the  seller  to  take 
something  in  part  payment,  and  there  is  nothing  further,  that 
term  alone  is  not  equivalent  to  actual  part  payment. 

In  Walker  v.  Nussey  ^  it  was  verbally  agreed  between  the  parties 
that  a  previous  indebtedness  of  the  vendor  to  the  vendee  should  go 
as  part  payment  to  the  vendor  of  a  lot  of  leather  purchased  orally. 
The  court  held  that  the  alleged  part  payment  was  part  of  the 
bargain  itself,  and  could  not  be  wrested  into  proof  of  an  actual 
payment,  without  repealing  the  statute,  and  suffering  a  verbal 
contract  for  the  sale  of  goods  of  <£10  value  to  have  effect,  without 
the  safeguards  provided  by  law  against  fraud  in  such  cases,  as 
no  receipt,  at  the  time  of  the  second  transaction  was  given  the 
vendor  for  his  debt  by  the  vendee,  nor  any  other  thing  done  by 
him,  so  that  everything  rested  in  verbal  contract.  But  the  part 
payment  required  by  the  statute,  in  order  to  make  the  contract 
for  the  sale  of  goods  of  the  value  of  over  $40  binding  on  the 
parties,  does  not  require  the  actual  passing  of  money  from  the 
vendee  to  the  vendor.  But  it  must  be  of  value, —  money's  worth  ; 
and  it  must  be  agreed  by  both  parties  at  the  time  that  the  value  is 
then  actually  passed  from  the  vendee  to  the  vendor  ;  that  it  is  a 
then  present  payment.  It  is  not  enough  for  the  parties  to  agree 
^that  it  shall  be  applied  as  payment.  That  would  be  merely  an 
agreement  to  pay.  It  must  not  rest  in  agreement.  The  payment 
must  be  actually  made,  and  both  parties  must  so  understand  it, — 
the  vendee  that  he  pays  and  the  vendor  that  he  receives  the  value, 

1  Brand  v.  Brand,  49  Barb.  346  ;  Wal-     Co.   v.   McMahon's  Adm'r,   38  N.  J.    L. 
rath    V.   Richie,  5  Lans.  362  ;    Hicks  i;.      536,  are  to  the  same  effect, 
Cleveland,  48  N.  Y.  84  ;  Matthiessen,  &c.  '^  16  M.  &  W.  302. 


308  COMMENTARIES   ON   SALES.  [BOOK   IV. 

and  thus  that  the  title  to  the  value  has  passed  from  the  vendee  to 
the  vendor.  The  statute  only  requires  actual  part  payment.  It 
does  not  require  that  such  payment  shall  be  shown  by  writing, — by 
an  indorsement,  a  credit,  or  a  receipt,  or  by  the  manual  delivery 
of  any  article  or  property  of  value.  It  leaves  the  parties  to  prove 
payment  by  such  proof  as  they  may  have ;  but  it  does  require 
proof  of  payment,  and  not  of  a  mere  agreement  to  pay  or  to  apply 
in  payment. 

Thus  in  Dow  v.  Worthen,^  where  A.  bought  apples  from  B.,  un- 
der a  verbal  agreement  that  the  price  of  the  apples  should  be  a 
part  payment  on  poultry  which  B.  was  negotiating  to  buy  from 
A.,  if  the  sale  of  the  poultry  were  consummated  ;  and  on  the 
consummation  of  such  sale,  the  price  of  the  apples  was  agreed 
on  at  ITS,  which  was  then  agreed  upon  and  treated  by  both 
parties  as  a  then  present  payment,  which  extinguished  the  debt 
for  the  apples,  and  turned  it  into  a  claim  as  for  money, paid  on 
the  contract  for  the  poultry  ;  the  court  held  that  the  case  was 
taken  out  of  the  statute.  But  in  Oilman  v.  Hill,^  where  on  the 
verbal  sale  of  pelts  for  more  than  S50,  the  parties  agreed  that  a 
prior  indebtedness  of  the  vendor  to  the  vendee  should  be  allowed 
towards  the  pelts,  the  court  held  that  this  was  not  an  act  done, 
a  payment  actually  made,  but  simply  an  agreement  that  the  sum 
should  be  allowed,  —  a  matter  resting  in  contract  only  ;  and  that 
the  case  was  within  the  statute ;  but  that  this  agreement,  with 
the  accompanying  facts,  was  evidence  that  the  parties  treated  the 
sale  as  consummated  by  a  delivery  and  acceptance  of  the  pelts. 

In  Hughes  v.  Paramore,^  one  of  two  persons  who  had  dealings 
together  and  were  mutually  indebted  to  one  another,  had  supplied 
some  bricks  on  the  credit  of  the  other  in  1834,  but  no  account 
had  been  delivered  or  made  out  on  either  side.  In  1845  they 
signed  in  duplicate  a  memorandum,  saying,  "  It  is  agreed  that 
Mr.  R.  in  his  general  account  shall  give  credit  to  Dr.  H.  for  £174, 
being  for  bricks  delivered  in  1834."  The  court  held  that  this  was 
nothing  more  than  an  agreement  to  take  a  particular  item  into 
account  between  the  parties,  and  was  insufficient  to  exclude  the 
mutual  debts  from  the  operation  of  the  Statute  of  Limitations ; 
and  if  the  X174  could  be  taken  as  a  payment  at  all,  it  could  only 
be  taken  as  payment  at  the  time  it  was  entered  in  the  account,.; 
and  not  at  the  time  when  the  agreement  was  entered  into.* 

^  37  Vt.  108.  made  on  accoiint  of  the  debt  for  which 

2  36  N.  H.  311.  the  action   i.s   brought,   and   that  it  was 

3  7  De  G.  M.  &  G.  229."'  made  as  a  part  payment  of  a  greater  debt. 
*  In  order  to  take  a  case  out  of  the     Tippets  v.  Heane,  1  C.  M.  &  K.  1v>-2.     See 

statute  of  limitations  by  a  part  payment,  further  as  to  part  payment,')  to  take  the 
it  must  appear  that    the    payment   was     caseoutof  the  statute  of  limitations,  Wain- 


PART  v.]  EARNEST  OR  PART  PAYMENT.  309 

A  verbal  agreement  was  made  in  Gadds  v.  Leeson  ^  for  the  sale 
by  A.  to  B.  of  a  lot  of  land  for  1400 ;  and,  as  B.  was  owing  A. 
more  than  that  sum,  the  purchase-money  was  to  be  allowed  on  the 
account.  There  was  no  receipt  taken  for  the  1400,  nor  was  any 
credit  given  on  the  account.  It  was  held  that  there  was  no  pay- 
ment, or  part  performance  of  any  kind,  to  take  the  case  out  of  the 
statute. 

In  Phillips  V.  The  Ocmulgee  Mills,^  it  was  held  that  a  note  of 
the  vendee,  payable  in  cotton,  given  for  cotton  purchased  orally, 
and  dated  back  to  the  time  of  the  purchase  of  the  cotton,  though 
given  after  the  destruction  of  the  cotton  by  fire,  related  back  and 
became  part  of  the  contract,  so  as  to  take  the  case  out  of  the 
statute. 

The  act  of  part  performance,  whether  it  is  a  part  delivery  of 
the  goods  or  part  payment  of  the  purchase-money,  must  be  mutual. 
In  either  case  the  assent  of  both  parties  to  the  act  of  part-perform- 
ance is  necessary.  Delivery  of  the  goods  without  acceptance  is  in- 
sufficient ;  and  payment  implies  a  receipt  and  acceptance  of  the 
money  or  consideration  by  the  party  to  whom  it  is  made.  But 
payment  may  be  made  to  the  vendor's  agent  authorized  to  receive 
it,  as  well  as  to  the  principal ;  and  when  made  to  an  agent,  it  is 
payment  to  the  principal.  This  rule  of  law  applies  as  well  to 
contracts  within  the  Statute  of  Frauds  as  to  other  contracts. 
Payment  to  an  agent  furnishes  the  same  ground  of  security 
against  false  claims  as  if  made  directly  to  the  principal.  And 
the  authority  of  the  agent  to  receive  the  payment  may  be  shown 
by  any  act  on  the  principal's  part  recognizing  it ;  or  the  subse- 
quent ratification  of  the  act  of  the  assumed  agent  is  equivalent  to 
an  original  authority.^ 

In  this  case  (Hawley  v.  Keeler),  terms  of  a  proposed  contract 
for  the  purchase  of  cheese  were  agreed  upon  on  November  1, 
1868,  but  there  was  no  present  contract  of  sale  ;  and  whether 
such  a  contract  should  be  made  was  to  depend  upon  the  election  of 
the  plaintiffs,  on  or  before  November  3,  to  take  the  cheese  at  the 
price  named,  and  their  depositing  f  1000  in  a  bank  to  the  defend- 
ants' credit.  The  court  held  that  the  deposit  having  been  made  at 
the  time  when,  by  the  agreement  of  the  parties,  the  contract  of  sale 

man  v.   Kynman,  1  Ex.  118  ;  Hayden  v.  v.   Ramsey,    8  A.   &  E.   221  ;  Waugh  v. 

Williams,  7  Bing.  163  ;   Ashby  v.  James,  Cope,  6  M.  &  W.  824;  Hart  v.  Preiuler- 

11  M.  &  W.  .542;  Edmunds  v.  Goater,  15  gast,  14  M.  &  W.  741  ;  Mills  v.  Fowkes, 

Beav.  415  ;  Hooper  v.   Stej)hens,  4  A.  &  5  Bing.   N.  C,  455  ;  Burn  v.   Houlton,  2 

E.    71  ;    Worthington    v.   (jlrimsditcli,    7  C.    B.    476  ;    Cottam  v.  Partridge,   4  M. 

Q.  B.  479  ;  Catling  v.  Skoulding,  6  T.  R.  &  G.  271. 
189;   Tanner  v.  Smart,  6  B.  &  C.   603;  i  55  111.  83. 

Smith  V.   Thorne,   21    L.   J.   Q.  B.   199  ;  «  55  Ga.  633. 

Gardner  v.  McMalion,  3  Q.  B.  561  ;  Clies-  »  Hawley  v.  Keeler,  33  N.  Y.  114. 

lyn  V.  Dalby,  4  Y.  &  C.  238  ;  Routledge 


1' 

310  COMMENTARIES   ON   SALES.  [BOOK   IV. 

was  to  arise,  and  it  being  one  of  the  conditions  upon  which 
the  existence  of  tlie  contract  depended,  this  was  a  payment  at 
the  time  of  tlie  contract  to  take  the  case  out  of  the  New  York 

statute. 

In  Ricliardson  v.  Squires,^  the  defendant  sold  the  plaintiff 
thirty-one  sheep,  twenty  of  which  were  delivered  and  paid  for ; 
the  contract  not  being  in  writing.  In  an  action  for  damages  for 
non-delivery  of  the  remainder,  it  was  held  that  there  was  an 
acceptance  of  a  part  of  the  property  purchased  upon  the  contract, 
and  a  payment  of  part  of  the  purchase-money  ;  either  of  which 
was  sufficient  to  take  the  contract  out  of  the  statute  and  make  it 
binding  upon  the  parties  as  an  executory  contract. 

The  language  of  the  Statute  of  Frauds  implies  that  in  whichever 
way  the  parties  verbally  agree  or  propose  that  a  contract  for  the 
sale  of  goods,  wares,  or  merchandise  for  the  price  of  £10  or  more 
shall  be  made  exempt  from  the  statute,  —  whether  it  be  by  the 
purchaser  accepting  and  receiving  part  of  the  goods  so  sold,  by 
giving  something  in  earnest  to  bind  the  bargain  or  in  part  pay- 
ment, or  by  making  a  note  or  memorandum  of  the  bargain, —  it 
must  be  done,  if  done  at  all,  by  the  consent  of  both  parties.  It  is 
obvious  that  it  would  require  the  consent  of  the  purchaser  to 
accept  and  receive  part  of  the  goods,  and  he  could  not  receive 
them  unless  by  the  consent  of  the  seller  ;  the  purchaser  could  not 
give  something  in  earnest  to  bind  the  bargain,  or  in  part  payment, 
unless  the  seller  accept  and  receive  it;  nor  could  a  note  or  memo- 
randum of  the  bargain  be  made  and  signed,  unless  by  the  consent 
of  the  party  to  be  charged  thereby.  A  valid  contract  is  an  agree- 
ment or  covenant  between  two  or  more  persons,  in  which  each 
party  binds  himself  to  do  or  forbear  some  act,  and  each  acquires 
a  right  to  what  the  other  promises  ;  but  if  the  parties,  in  making 
a  contract  within  the  Statute  of  Frauds,  omit  to  do  what  the  stat- 
ute requires  to  be  done  to  make  a  valid  contract,  it  requires  the 
consent  of  both  parties  to  supply  the  thing  omitted.'-* 

^  37  Vt.  640.  defendant  had  not  authorized  the  trans- 
^  A  verbal  agreement  was  entered  into  mission  of  the  money  by  mail,  the  delivery 
by  the  parties  in  Edgerton  v.  Hodge,  41  to  the  post-office  did  not  bind  the  defend- 
Vt.  676,  on  June  30,  for  the  sale  by  the  ant ;  and,  as  there  was  no  binding  contract 
defendant  to  the  plaintiff  of  a  quantity  under  the  statute,  the  money  not  having 
of  cheese  for  a  greater  price  than  §40,  no  been  accepted  as  a  part  payment,  the  con- 
part  of  which  was  delivered.  On  July  tract  could  not  be  enforced.  The  court 
1  the  defendant  wrote  the  plaintiff  for  said  :  "  Suppose  it  had  been  one  stipula- 
a  payment  of  ,$50  to  bind  the  bargain,  tion  of  the  verbal  agreement  on  June  30 
The  plaintiff,  on  July  2,  enclosed  the  that  the  plaintiff  should  give  and  the  de- 
IfiO  in  a  letter  directed  to  the  defendant  fendant  receive  something  in  earnest  to 
and  deposited  it  in  the  post-office,  which  bind  the  bargain,  and  in  pursuance  of 
letter  was  delivered  to  the  defendant  on  such  stipulation  the  plaintiff  had  then 
July  8.  The  defendant  did  not  ac-  offered  to  give  or  pay  the  amount  so  stipu- 
ceiJt  the  money,  but  returned  it  to  the  lated  and  the  defendant  had  refused  to 
plamtiff.      The  court  held  that,   as  the  receive  it,  saying  that  he  preferred  not  to 


PART  v.] 


EARNEST  OR  PART  PAYMENT. 


311 


Earnest  does  not  necessarily  and  always  transfer  the  title  to 
the  specific  property  for  which  it  has  been  given.  It  only  binds 
the  contract.  Notwithstanding  the  payment  of  earnest,  if  the 
whole  price  is  to  be  paid  on  delivery  of  the  thing  bought,  of 
which  there  was  no  delivery  at  the  time  of  the  contract,  the  pur- 
chaser cannot  maintain  detinue  or  trover  for  the  property  bought 
until  he  shall  have  paid  or  tendered  the  entire  consideration ;  the 
vendor,  notwithstanding  such  a  sale,  having  a  lien  on  the  thing 
sold  for  the  consideration  or  purchase-money.^  And  if  a  bargain 
be  made,  and  earnest  given,  without  an  express  agreement  that 


receive  any  money  until  lie  had  delivered 
the  whole  or  part  of  the  property,  or  had 
refused  to  accept  the  money  so  offered,  or 
do  any  other  act  to  bind  the  bargain,  with- 
out giving  any  reason  for  such  refusal,  it 
would  be  evident  that  he  did  not  intend 
to  make  a  binding  contract.  But  the  fact 
that  he  had  made  such  verbal  agreement 
to  receive  something  or  to  do  some  other 
act  to  bind  the  bargain,  and  that  the 
plaintiff  was  ready  and  offered  to  comply 
on  his  part,  would  not  take  the  agreement 
out  of  the  statute.  A  verbal  stipulation 
to  give  and  to  receive  something  in  earn- 
est to  bind  the  bai-gain,  or*  in  part  pay- 
ment, or  a  verbal  promise  to  make  a  note 
or  memorandum  in  writing  necessary  to 
exempt  the  agreement  from  the  operation 
of  the  statute,  is  as  much  witliin  the 
statute  of  frauds  as  is  the  agreement  or 
contract  taken  as  a  whole  ;  and  a  note  or 
memorandum  in  relation  to  giving  some- 
thing in  earnest  to  bind  the  bargain  or  in 
part  payment,  which  is  insufficient  of  itself 
to  take  the  contract  out  of  the  statute,  is 
also  insufficient  to  make  the  contract  bind- 
ing upon  either  party." 

1  M.,  having  borrowed  some  money 
from  the  plaintiffs,  and  agreed  that  they 
should  have  his  "  unprised  "  crop  of  to- 
bacco for  $600  a  cwt.,  to  be  paid  on  the 
delivery  of  the  tobacco,  afterward  sold  it 
to  the  defendant.  In  an  action  of  trover 
against  the  defendant  the  court  held  that, 
while  the  sum  advanced  was  entitled  to 
all  the  effect  of  earnest-money,  there 
having  been  no  actual  delivery  of  tobacco 
to  the  ])laintifi's,  nor  any  payment  or 
tender  of  the  whole  yirice  agreed  to  be  paid 
for  it,  the  proiierty  in  the  tobacco  had  not 
been  passed  from  the  seller  to  the  plain- 
tifl's  so  as  to  enabli!  them  to  maintain 
trover  for  the  conversion  of  it.  The 
quantity  of  the  tobacco  had  not  been 
ascertained,  nor  was  it  in  a  condition  for 
delivery,  and  liad  tlie  tobacco  been  con- 
sumed or  spoiled  the  day  after  the  date  of 
the  contract,  without  the  vendor's  fault, 
the  loss  would  have  Keen  liis,  and  he  could 
not  have  recovered  the  stipulated  price. 


Jennings  v.  Flanagan,  5  Dana  (Ky.),  217. 
So  in  Neil  v.  Cheves,  I  Bail.  (S.  C),  537, 
where  there  liad  been  a  part  payment  of 
f  50  on  account  of  the  purchase-money  of 
a  quantity  of  cotton,  and  the  purchaser 
had  not  performed  his  part  of  the  contract, 
the  court  held  that  the  payment  of  a  part 
of  the  purchase-money  at  or  after  the  con- 
tract did  not  operate  to  invest  the  plain- 
tiff with  a  property  in  the  cotton ;  and 
the  riglits  of  the  vendors  to  have  the 
whole  purchase-money  paid  before  they 
parted  with  the  possession,  left  them  at 
liberty  to  consider  the  contract  at  an  end 
when  the  plaintiff  failed  to  comply  with 
his  part  of  the  agreement.  In  Nesbit  v. 
Burr}',  25  Pa.  St.  208,  which  was  an  action 
of  replevin  for  a  yoke  of  oxen,  the  plain- 
tiff agreed  with  the  defendant  for  the  pur- 
chase of  the  oxen,  and  paid  $10  as  earnest- 
money  to  bind  the  bargain.  The  proposed 
mode  of  weighing  having  failed,  the  ven- 
dors refused  to  deliver  the  oxen.  The 
court  held  that  after  the  parties  had  agreed 
upon  the  terms  of  sale  and  the  mode  of 
ascertaining  the  weight,  and  part  of  the 
price  had  been  paid,  and  wlien  the  agreed 
means  of  weighing  had  failed,  the  re- 
fusal of  the  vendor  to  cany  out  the  con- 
tract did  not  vest  the  projierty  in  the 
vendee.  The  court  said  :  "  The  weighing 
being  necessary  to  a  perfect  sale  where 
there  is  no  delivery,  is  not  dispensed  with 
by  an  unsuccessful  attempt  to  weigh,  or 
by  a  refusal  to  try  a  better  mode  of  doing 
it.  These  matters  left  the  parties  as  they 
stood  liefore,  and  the  title  remained  in  the 
vemlor.  Nor  does  earnest  or  ])art  payment 
aid  in  vesting  the  title  where  the  (juantity 
is  yet  to  be  ascertained  and  there  is  no 
delivery.  Under  such  circumstances  the 
contract  is  essentially  executory,  and  the 
part  payment  only  shows  a  concluded  and 
binding  agreement.  Taking  the  facts  as 
above  .stated,  the  sale  remained  imperfect 
and  executory,  and  tlie  vendor  might  refuse 
jierforniance,  subject  to  the  vendee's  right 
to  damages  for  the  breach."  Goodall  v. 
Skelton,  2  H.  Bl.  316,  is  to  the  same 
effect. 


312 


COMMENTARIES   ON   SALES. 


[book   IV. 


payment  is  to  be  made  at  a  certain  time,  the  money  must  be  paid 
before  the  goods  are  removed  ;  and  a  demand  of  the  goods  with- 
out a  tender  of  the  money  is  void,  because  it  is  not  pursuant  to 
the  intent  of  the  bargain,  and  the  earnest  is  only  to  bind  the 
baro-ain.^  Whether  there  shall  have  been  a  transmission  of  the 
property  in  the  thing  sold  or  not,  notwithstanding  earnest-money 
has  been  paid,  does  not  alone  depend  on  that  fact,  but  upon  the 
nature  of  the  entire  transaction."^ 


1  In  an  action  for  the  non-delivery  of 
corn  at  S.,  pursuant  to  an  agreement, 
whereby  the  defendant,  in  consideration 
that  the  plaintiff  had  bought  of  him  a  cer- 
tain quantity  at  a  fixed  price,  undertook  to 
deliver  it  to  the  plaintitf  at  S.  within  one 
month  from  the  time  of  the  sale,  the  plain- 
tiff must  aver  a  tender  of  the  price,  or 
what  is  equivalent  thereto  ;  for  the  de- 
livery of  the  corn  and  the  payment  of  the 
price  being  concurrent  acts,  to  be  done  by 
the  parties  respectively  at  the  same  time, 
each  must  aver  performance  or  an  offer  to 
perform  his  part  before  he  can  maintain  an 
action  against  the  other.  Morton  v.  Lamb, 
7  T.  R.  125  ;  Lea  v.  Exelby,  Cro.  Eliz. 
888  ;  Thorpe  v.  Thorpe,  Salk.  171 ;  Callo- 
nel  V.  Briggs,  Salk.  113  ;  Kingston  v.  Pres- 
ton, Doug.  688  ;  Goodison  v.  Nunn,  4  T. 
R.  761  ;  Pickett  v.  Cloud,  1  Bail.  (S.  C.) 
362  ;  Mattock  v.  Kinglake,  10  A.  &  E. 
50  ;  Standley  v.  Hemmington,  6  Taunt. 
561  ;  Heard  v.  Wadham,  1  East,  619  ; 
Glazebrook  v.  Woodrow,  8  T.  R.  366  ; 
Pincke  v.  Curteis,  4  Bro.  C.  C.  332. 

2  Langford  v.  Adm'x  of  Tyler,  6  Mod. 
162;  1  Salk.  113.  It  was  held  iu  this 
case  by  Holt,  C.  J.,  that  after  earnest 
given,  the  vendor  (the  action  being  be- 
tween himself  and  the  vendee)  cannot  sell 
to  another,  but  if  the  vendee  do  not  come 
to  pay  and  take  the  goods,  the  vendor 
ought  to  come  and  request  him  to  come 
and  pay  ;  and  if  he  do  not  come  in  con- 
venient time,  the  agreement  is  dissolved, 
and  then  he  may  sell.  But  in  Knight  v. 
Hopper,  Skin.  647,  where  there  was  a  .sale 
of  one  hundred  pieces  of  muslins  at  40s. 
per  piece,  to  be  taken  away  by  ten  pieces 
at  a  time,  and  paid  for  as  taken  away  ;  it 
was  held,  by  the  same  high  authority,  that 
the  pieces  being  ^narked  and  sealed,  the  prop- 
erty loas  altered  inimediately,  and  they  re- 
mained only  as  a  security  for  the  money; 
and  if  they  were  not  taken  away  upon  re- 
quest in  a  reasonable  time,  the  vendor 
might  have  an  action  for  his  money,  but 
yet  that  he  might  not  sell  the  goods.  The 
question  of  the  rights  and  powers  of  the 
vendor  in  such  cases,  is  thus  as  to  whether 
there  has  or  has  not  been  a  change  in  the 
property  in  the  subject  of  the  contract. 
If  the  property  has  passed  to  the  vendee. 


then,  though  the  vendor  may  maintain  his 
lien  for  the  purchase-money,  he  cannot 
pass  the  property  in  the  thing  to  any  third 
party.  And  in  a  case  where  a  man  comes 
to  buy  goods  and  offers  £10  for  them,  and 
the  owner  agrees  to  accept  the  money,  and 
the  buyer  takes  away  the  goods  without 
payment  to  the  owner  or  delivery  by  him, 
there  the  vendor  can  maintain  an  action 
of  trespass  or  trover,  notwithstanding  the 
bargain.  But  if  they  agree  upon  a  price, 
and  the  vendor  take  the  vendee's  word  for 
payment,  and  deliver  the  goods  to  him  ; 
there  the  vendor  is  put  to  his  action  for  the 
money  upon  the  contract,  and  trover  for 
the  goods  will  not  lie.  Man  by  v.  Scott, 
1  Mod.  124,  137.  But  the  statute  of 
frauds  prevents  a  parol  agreement  to  buy 
goods  of  the  value  of  £10,  without  either 
earnest  or  delivery,  from  giving  the  buyer 
any  property  in  them.  In  such  case, 
therefore,  the  buyer  cannot  maintain  tro- 
ver against  the  vendor,  who  sells  them  to 
another  person.  Alexander  v.  Cauber, 
1  H.  Bl.  20.  In  Greaves  v.  Ashlin, 
3  Camp.  426,  where  there  was  a  written 
contract  for  the  sale  of  a  quantity  of  oats, 
on  which  an  action  was  brought  against 
their  vendor  for  not  delivering  them,  it 
was  claimed  that  the  defendant  was  en- 
titled to  re-sell  the  oats  in  the  manner  he 
had  done,  the  plaintiff  not  having  carried 
them  away  in  a  reasonable  time  after  no- 
tice, and  that,  under  these  circumstances, 
the  contract  might  be  considered  as  dis- 
solved, the  property  in  the  oats  revesting 
in  the  defendant.  But  Lord  Ellen  borough 
held  that  the  plaintiff  was  entitled  to  re- 
cover. He  said  :  "If  the  buyer  does  not 
carry  away  the  goods  bought  within  a  rea- 
sonable time,  the  seller  may  charge  him 
warehouse  room  ;  or  he  may  bring  an  ac- 
tion for  not  removing  them,  should  he  be 
prejudiced  by  the  delay.  When  a  farmer 
sets  out  his  tithes,  and  gives  the  pai-son 
notice  to  take  them  away,  he  may  bring 
his  action  if  the  latter  does  not  do  so  within 
a  reasonable  time  ;  but  the  parson's  neglect 
docs  not  revest  in  the  farmer  the  property  in, 
the  articles  set  out.  In  this  case  the  notice 
given  to  fetch  away  the  goods,  could  not 
discharge  the  defendant  from  his  contract, 
nor  empower  him  to  sell  the  property  of  the 


PART  v.] 


EARNEST  OR  PART  PAYMENT. 


313 


Earnest  and  part  payment  being,  as  we  have  seen,  essentially 
the  same,  it  necessarily  follows  that  whatever  is  paid  as  earnest- 


plaintiff."  Here,  evidently,  Lord  Ellen- 
borough  treated  the  property  in  the  oats 
as  having  vested  in  the  ])laiutiti',  as  he  did 
the  tithes  as  having  vested  in  the  parson. 
It  is  only  on  this  ground,  we  think,  that 
this  case  can  be  reconciled  with  Lord 
Holt's  holding  in  Laugford  v.  Adm'x  of 
Tyler,  6  Mod.  162  ;  1  Salk.  113  ;  or  that 
this  latter  case  can  be  reconciled  with  the 
holding  of  the  same  learned  judge  himself, 
in  Knight  v.  Ift)pper,  Skin.  647;  in  which 
latter  case  it  was  expressly  held  that  the 
right  of  the  vendor  to  rescind  the  contract 
for  the  non-taking  away  of  the  goods  by 
the  vendee,  was  gone,  because  the  projjerty 
in  the  goods  had  vested  in  the  vendee,  and  a 
right  of  action  only  for  the  money  was  left. 
But  where,  as  in  Langford  v.  Adm'x  of 
Tyler,  must  have  been  the  case,  to  have 
made  the  holding  there  consistent  with 
the  decision  in  Knight  v.  Hopper,  though 
there  had  been  a  payment  of  earnest-money, 
as  there  had  not  been  a  transmission  of  the 
property  in  the  tea  to  the  vendee,  and  the 
whole  matter  was  simply  lying  in  contract ; 
there,  if  after  notice  the  vendee  did  not 
elect  to  carry  out  the  contract,  the  ven- 
dor, at  his  election,  might  treat  the  con- 
tract as  rescinded  ;  the  matter  simply 
lying  in  contract,  and  there  having  been 
no  change  in  the  property  in  the  goods. 
The  text-writers  and  cases  have  generally 
considered  Langford  v.  Adm'x  of  Tyler  as 
irreconcilable  with  Greaves  v.  Ashlin  ;  but 
we  think  it  is  no  more  so  than  it  is  with 
Lord  Holt's  own  holding  in  Knight  v. 
Hopper  ;  and  as  it  is  not  inconsistent,  on 
the  ground  we  have  j)laced  it,  with  Knight 
V.  Hopper,  neither  is  it,  on  the  same  ground, 
inconsistent  with  Greaves  v.  Ashlin.  In 
Clarkson  v.  Carter,  3  Cow.  84,  the  court 
held  that  in  a  cash  sale  of  goods,  where 
there  had  been  a  memorandum  in  writing 
under  the  statute,  the  vendee  was  not  en- 
titled to  the  possession  until  he  paid  the 
price  ;  and,  following  Langford  v.  Adm'x 
of  Tyler,  6  Alod.  162  ;  s.  c.  no/ii.  Lang- 
fort  V.  Adm'x  of  Tiler,  1  Salk.  113,  it 
was  held  (the  property  in  the  goods,  as  in 
Langford  v.  Adm'x  of  Tyler,  not  having 
passed),  that  the  vendee  not  having  ac- 
cepted the  goods  on  request,  the  agreement 
was  dissolved,  and  the  vendor  was  at  lib- 
erty to  sell' the  goods  to  any  other  person. 
But,  not  consistently  with  Langford  v. 
Adm'x  of  Tyler,  it  was  further  held  in 
Clarkson  v.  Carter,  3  Cow.  84,  that  the 
vendor,  on  electing  to  treat  the  contract  as 
rescinded,  had  still  an  action  on  the  con- 
tract against  the  vendee  for  the  loss  on  the 
sale  of  the  goods  to  another  party,  not- 
withstanding the  rescission  or  dissolution 


of  the  contract.  We  think,  on  the  princi- 
ple of  the  above  decisions  by  Lonl  Holt 
and  Lord  EUenborough,  that,  notwith- 
standing the  case  was  taken  out  of  the 
statute  by  the  payment  of  earnest,  or  by  a 
note  or  memorandum  in  writing,  if  there 
had  been  a  transmission  of  the  property  in 
the  goods,  the  vendor  could  not,  of  his 
own  mere  motion,  rescind  the  sale,  but 
would  be  put  to  his  action  for  payment  for 
the  goods  sold  ;  retaining  his  lien  for  the 
price.  But,  on  the  other  hand,  if  there 
had  been  no  transmission  of  the  property 
in  the  goods,  and  the  vendee  did  not  per- 
form his  contract,  there  the  vendor  might 
elect  to  enforce  the  contract  by  action  ; 
or,  on  the  other  hand,  might,  after  notice, 
elect  to  dissolve  or  rescind  the  contract. 
But,  we  think,  on  princijile,  if  he  elected 
the  latter  course,  the  rescission  would  be  a 
rescission  ab  initio,  and  that  he  could  not 
both  rescind  the  contract  and  also  enforce 
it,  as,  in  eflect,  it  is  held  in  Clarkson  v. 
Carter,  3  Cow.  84,  he  might  do.  On  this 
latter  point,  the  court  followed  the  deci- 
sion of  the  Supreme  Court  of  New  York  in 
Sands  v.  Taylor,  5  Johns.  395,  where  it 
was  held  that  where  the  vendee  refused  to 
accept  the  goods,  the  vendor  could  re-sell 
them  and  sustain  an  action  against  the 
first  vendee  for  the  difference  in  price. 
The  court  were  under  the  impression  that 
the  case,  with  the  exception  of  an  unre- 
ported casein  theNew  Yoik  Supreme  Court 
of  Heermance  v.  Yeomans  (cited  in  Sands 
V.  Taylor,  5  Johns.  402,  406),  was  one  of 
first  instance  ;  the  case  of  Knight  v.  Hop- 
per, Skin.  657,  having  escaped  them,  and 
Greaves  v.  Ashlin,  3  Camp.  426,  not  hav- 
ing been  then  decided.  Van  Ness,  J. ,  re- 
lied on  and  assumed  to  follow  Lanford  v. 
Adm'x  of  Tyler,  6  Mod.  162  ;  1  Salk.  113, 
not  noticing  that  Lord  Holt  there,  in  hold- 
ing that  the  vendor  was  at  liberty  to 
re-sell  the  goods,  did  so  on  the  ground 
that  the  agreement  was  dissolved  ;  but  not 
holding  that  the  vendor  could  both  re- 
sell the  goods  on  the  ground  that  the 
agreement  was  dissolved,  and  recover 
against  the  first  vendee  for  the  loss 
on  the  re-sale,  on  the  ground  that,  not- 
withstanding his  election  to  dissolve  the 
contract  of  sale,  it  still  existed  :  the  very 
op]iOsite  to  which  has  been  lield,  as  we 
have  seen,  by  Loid  Holt  hinisi-lf,  in  Knight 
V.  Hojiper,  Skin.  647,  and.  subseipicntly, 
by  Lord  Kllenborough,  in  Greaves  r.  Ash- 
lin, 3  Camp.  426.  Kent,  C.  J.  (after- 
ward, Kent,  Chancellor, )  in  Sands  v.  Tay- 
lor, also  concurred  with  the  other  judges 
in  their  holding  in  that  case,  resting  on 
the  dicta  of  Parker,  L.  C,  in  Cuddee  v. 


314 


COMMENTARIES   ON  SALES. 


[book  IV. 


money  or  as  part  payment  becomes,  on  completion  of  the  con- 
tract, a  part  of  the  purchase-money,  to  be  appropriated  to  the 
contract.  It  also,  therefore,  follows  that  where  there  has  been 
a  mutual  rescission  of  the  contract,  the  vendee  has  a  right  to  a 
return  of  the  money  paid  as  earnest  or  part  payment.^  But  where 
money  is  deposited,  not  as  a  part  payment,  or  earnest  to  bind  the 
baro-ain,  but  as  a  forfeiture,  there  the  same  principle  does  not 
apply  ;  and  the  deposit  of  tlie  money  as  a  forfeiture  is  not  the 
payment  of  earnest,  or  part  payment,  to  take  the  case  out  of  the 
statute,  and  is  not  recoverable  back.^ 


Rutter,  5  Vin.  Ab.  538,  pi.  21 ;  s.  c.  nom. 
Cud  V.  Butter,  1  P.  Wms.  570.  But 
that  was  an  entirely  different  case  from 
Sands  v.  Taylor.  Cuddee  v.  Rutter  was 
the  case  of  a  bill  in  equity  filed  by  the  ven- 
dee for  the  specific  performance  of  a  con- 
tract to  transfer  stock,  for  which  earnest- 
money  had  been  paid.  The  court  held 
that  the  bill  would  not  lie,  as  there  was  an 
adequate  remedy  at  law  ;  but,  under  the 
circumstances,  ordered  an  inquiry  as  to 
the  difference  in  value  between  the  stock 
at  the  date  when  it  should  have  been  de- 
livered, and  the  selling  price  at  that  time. 
Here  the  vendee  sought  an  enforcement 
of  the  contract.  This  is  very  different 
from  the  vendor  electing  to  dissolve  or  re- 
scind the  contract,  aud,  at  the  same  time, 
seeking  to  enforce  it  as  a  subsisting  con- 
tract. There  is  an  early  Pennsylvania 
case  (Girard  v.  Taggart,  5  S.  &  R.  19) 
where  it  was  held  that  where  goods  are 
sold  at  public  auction  on  a  credit,  and  the 
vendee  afterwards  refuses  to  take  them,  the 
owner  may,  before  the  expiraMon  of  the 
credit,  re-sell  the  goods  and  maintain  an 
action  for  the  difference  between  the  origi- 
nal selling  price  and  the  amount  realized 
for  the  goods.  This  case,  too,  is  in  direct 
conflict  with  the  holding  of  Lord  Holt,  in 
Knight  V.  Hopper,  Skin.  647,  and  of  Lord 
Ellen  borough  in  Greaves  v.  Ashlin,  3 
Camp.  426.  The  ground  upon  which  the 
decision  is  put  in  Girard  v.  Taggart,  5 
S.  &  R.  19,  we  think,  fully  shows  its  un- 
soundness. The  court  said  :  "  The  buyer, 
after  having  disaffirmed  the  sale  as  far  as 
he  could  by  acts  of  his  own,  must  not  be 
permitted  to  treat  the  contract  as  still  ex- 
isting lor  the  purpose  of  being  performed 
by  him,  specifically  ;  but  the  seller  may, 
if  he  please,  consider  it  existing  only  for 
the  purpose  of  giving  a  remedy  for  its 
breach."  We  very  much  doubt  the  sound- 
ness of  this  distinction.  We  think  the 
vendor  cannot  assume  both  that  the  con- 
tract has  been  rescinded  and,  at  the  same 
time,  that  it  has  not  been  rescinded.  As 
we   have   seen,   if  the   property   has   not 


passed,  he  can  elect  to  enforce  the  contract, 
or  to  accept  its  rescission.  If  he  elect  to 
enforce  it,  he  has  a  full  remedj'  for  the 
breach  ;  but  if  he  elect  to  rescind  it,  as 
there  is  uo  contract,  so  there  can  be  uo 
breach  —  of  contract.  See  Mussen  v. 
Price,  4  East,  147  ;  De  Symous  v.  Minch- 
wick,  1  Esp.  430  ;  Dutton  v.  Solonionson, 
3  B.  &  P.  582  ;  Brooke  v.  White,  1  B.  &  P. 
N.  R.  330,  in  which,  as  in  many  other 
cases,  it  is  held  that  where  goods  are  sold 
on  credit,  an  action  will  not  lie  on  the 
contract  for  the  goods  sold,  until  the  ex- 
piration of  the  credit,  except  in  a  case  of 
fraud ;  that  is,  that  the  vendor  cannot 
treat  the  contract  as  repudiated  and  re- 
scinded, and  yet  recover  on  it  as  though  it 
were  not  repudiated  and  rescinded.  In 
Healy  v.  Utly,  1  Cow.  345,  where  there 
had  been  a  sale  of  oars,  which  was  subse- 
quently rescinded  between  the  parties,  it 
was  held  that,  as  the  acts  of  the  vendor 
amounted  to  an  assent  to  a  rescission  of 
the  contract,  the  vendor  on  a  re-sale  of  the 
oars  could  not  recover  against  the  first 
vendee  for  the  loss  on  the  re-sale.  This 
case,  in  principle,  is  identical  with  the 
holding  of  Lord  Holt  in  Knight  v.  Hop- 
per, Skin.  647,  and  of  Lord  Ellenborough 
in  Greaves  v.  Ashlin,  3  Camp.  426. 
Where  the  goods  are  of  a  perishable  char- 
acter, the  case  is  an  exceptional  one,  and 
a  different  rule  applies.  There,  by  the 
second  sale,  the  original  contract  is  not  re- 
scinded or  dissolved,  but  the  doctrine  of 
agenc}'  of  necessity  applies,  and  the  ven- 
dor, by  necessity,  becomes  the  agent  of  the 
vendee  to  get  the  price  that  is  obtainable 
for  the  goods.  We  consider  the  whole  ques- 
tion fully  in  a  later  portion  of  this  work. 

1  See  ante,  n.  2  to  p.  284. 

2  Thus,  in  Howe  v.  Hayward,  108  Mass. 
54  (stated  supra),  where  there  was  a  mu- 
tual deposit  of  .$200  each  between  the  par- 
ties to  an  oral  contract  for  a  sale,  "as  a 
forfeiture,  to  be  paid  over  to  the  party 
who  was  ready  to  perform  the  contract,  if 
the  other  party  neglected  to  do  so,"  it  w;is 
held  that  as  earnest  is  regarded  as  a  part 


PART  v.] 


EARNEST  OR  PART  PAYMENT. 


315 


An  alteration  by  parol  of  the  terms  of  a  written  contract  un- 
der the  provisions  of  the  Statute  of  Frauds  is  not  binding,  for 
the  reason  that  tlie  alteration  creates  a  new  contract  which  it 
would  be  necessary  to  prove  partly  by  parol  evidence ;  and  this 
principle  applies  as  well  to  contracts  for  the  sale  of  goods,  wares, 
and  merchandise  as  for  the  sale  of  lands. ^  But  where  a  contract 
for  the  sale  of  goods  is  taken  out  of  the  statute  by  the  payment 
of  earnest-money,  and  is  not  reduced  to  writing,  it  does  not  con- 
travene the  spirit  or  policy  of  the  statute  to  allow  its  terms  to  be 
varied  by  parol,  any  more  than  it  would  be  to  allow  the  terms  of 
the  original  contract  to  be  thus  proved.  In  such  a  case,  the  ori- 
ginal contract  is  treated  as  still  remaining,  and  no  new  consider- 
ation is  requisite  for  an  alteration  of  its  terms  in  respect  to  the 
time  for  its  performance,  "  the  consideration  for  the  old  agree- 
ment being  imported  into  the  new  agreement  which  is  substituted 
for  it."  2  It  is  competent  for  the  parties  to  the  oral  contract  to 
extend  or  vary  the  time  for  its  performance  by  a  subsequent  pa- 
rol agreement,  at  any  time  while  it  remains  executory,  without 
any  new  consideration." 


payment  of  the  price,  2  Bl.  Com.  447  ; 
Pordage  v.  Cole,  1  Saund.  319  b  ;  Lang- 
ford  V.  Tiler,  1  Sulk.  113  ;  Morton  v.  Tib- 
be  tt,  15  Q.  B.  428  ;  Walker  v.  Nussey, 
16  M.  &  W.  302  ;  1  Dane  Ab.  235  ;  the 
deposit  of  the  $200  as  a  forfeiture  was  not 
equivalent  to  an  earnest  to  bind  the  bar- 
gain, or  part  payment,  and  there  was  not 
a  valid  sale  within  the  statute  of  frauds. 
So,  in  Noakes  v.  Morey,  30  Ind.  103, 
where  there  was  a  j)arol  contract  for  the 
sale  of  goods  to  be  delivered  at  a  future 
time,  and  there  was  a  deposit  of  a  check 
for  $600  as  a  forfeiture,  it  was  held  that 
this  was  not  earnest  to  bind  the  bargain, 
or  part  payment,  to  take  the  case  out  of 
the  statute  of  frauds. 

In  Howe  v.  Smith,  27  Ch.  Div.  89,  on 
a  sale  of  real  estate,  the  purchaser  paid 
$500,  which  was  stated  to  be  paid  "  as  a 
deposit,  and  in  part  payment  of  the  pur- 
chase-money." The  contract  provided  that 
the  purchase  should  be  completed  on  a 
day  named,  and  that  if  the  purchaser 
should  fail  to  comply  with  the  agreement 
the  vendor  should  be  at  liberty  to  re-sell 
and  to  recover  any  deficiency  in  price  as 
liquidated  damages.  The  purchaser  was 
not  ready  witli  his  purchase-money,  and 
after  repeated  delays,  the  vendor  re-sold 
the  property  for  the  same  price.  On  an 
action  for  specific  performance,  the  court 
having  held  that  the  jiurchaser  by  his  de- 
lay had  lo.st  his  right  to  enforce  specific 
performance,  held,  further,  that   the  de- 


posit, although  to  be  taken  as  part  pay- 
ment if  the  contract  had  been  completed, 
was  also  a  guarantee  for  the  peiformance 
of  the  contract,  and  that  the  plaintiff,  hav- 
ing failed  to  perform  his  contract  within  a 
reasonable  time,  had  no  right  to  a  return 
of  the  deposit.  See  further,  Collins  v. 
Stimson,  11  Q.  B.  Div.  142  ;  Essex  v.  Dan- 
iell,  L.  Pi.  10  C.  P.  538  ;  Ex -parte  Barrell, 
L.  R.  10  Ch.  512  ;  Hinton  v.  Sparkes, 
L.  R.  3  C.  P.  161 ;  Casson  v.  Roberts,  31 
Beav.  613  ;  Laird  v.  Pim,  7  M.  &  W.  474  ; 
Icely  w.  Grew,  6  Nev.  &  M.  467  ;  Gee  v. 
Pearse,  2  De  G.  &  Sm.  325  ;  Palmer  v. 
Temple,  9  A.  &  E.  508  ;  Depree  v.  Bedbor- 
ough,  4  GifT.  479  ;  Ockenden  v.  Henly,  E. 
B.  &  E.  485,  492. 

1  Stead  V.  Dawber,  10  A.  &  E.  57  ; 
Marshall  v.  Lynn,  6  M.  &  W.  109  ;  Goss 
V.  Lord  Nugent,  5  B.  &  Ad.  58  ;  Blood 
V.  Goodrich,   9  Wend.  68,  79. 

2  Per  Lord  Dennian,  in  Stead  v.  Daw- 
ber, 10  A.  &  E.  57. 

3  Packer  v.  Steward,  34  Vt.  127,  131. 
There  are  cases  where  the  time  of  perform- 
ance of  a  written  contract  may  be  en- 
larged by  parol.  Keating  v.  Price,  1 
Johns.  Cas.  22 ;  Erwin  v.  Saunders,  1 
Cow.  249  ;  Frost  v.  Everett,  6  Cow.  497. 
But  this  does  not  apply  to  any  contract 
where  the  contract  itself  would  not  have 
been  valid  if  made  by  parol.  Jjlood  v. 
Goodrich,  9  AVend.  79.  In  Keating  v. 
Price,  1  Johns.  Cas.  22,  it  is  said  :  "This 
being  originally  a  simple  contract,  we  are 


316 


COMMENTARIES   ON   SALES. 


[book   IV. 


of  opiuiou  that  it  was  competent  for  the 
parties,  by  parol  agreement,  to  enlarge  the 
time  of  performing  it."  And  see  Fleming 
V.  Gilbert,  3  Johns.  527;  Langworthy  ?;. 
Smith,  2  Wend.  587;  Dearborn  ;;.  Cross, 
7  Cow.  50  ;  Neil  v.  Cheves,  1  Bailey,  537; 
Franklin  v.  Long,  7  G.  &  John.  407; 
Kobinson  v.  Batchelder,  4  N.  H.  40  ;  Low 


V.  Treadwell,  3  Fairf.  441;  Cummings  v. 
Arnold,  3  Mete.  486,  489  ;  Richardson  v. 
Hoof)er,  13  Pick.  446 ;  Mom-oe  v.  Perkins, 
9  Pick.  298  ;  Trumbo  v.  Cartright,  1 
Marsh.  (Ky.j  582  ;  Mossy  v.  Mead,  2  Mill 
(La.),  157  ;  Benson  v.  Smith,  lb.  103 ; 
Perrine  v.  Cheeseman,  6  Halst.  174;  Sharp 
V.  Lipsey,  2  Bailey,  113. 


PART  VI.]  THE  ACCEPTANCE.  317 


BOOK  ly. 

PART  VI. 
THE  ACCEPTANCE. 

As  we  have  seen  in  the  previous  Part,  the  earnest-money  and 
the  part  payment  to  take  the  case  out  of  the  statute  are  essen- 
tially the  same,  and,  whether  called  earnest-money  or  part 
payment,  may  be  anything  of  value  ;  but  the  acceptance  and 
actual  receipt  necessary  to  take  the  case  out  of  the  stat- 
ute, though  often  treated  as  being  the  same,  are  very  far  from 
being  so.  The  language  of  the  section  is,  "  Except  the  buyer 
shall  accept  part  of  the  goods  so  sold,  and  actually  receive  the 
same."  Here,  it  is  clear,  that  the  actual  receipt  referred  to 
does  not  mean,  exclusively,  a  manual  receipt ;  for  there  are  many 
cases  where  an  actual  manual  receipt  is,  in  the  nature  of  things, 
quite  out  of  the  question.  And  there  is  no  reason  why  a  con- 
structive or  symbolical  delivery  would  not  be  as  good,  within 
the  meaning  of  the  statute,  as  distinguished  from  an  actual 
manual  delivery,  as  in  ordinary  cases  where  the  circumstances 
of  the  case  render  good  at  common  law  a  constructive  or  symboli- 
cal delivery. 

The  term,  "  and  actually  receive  the  same,"  is  used  then,  we 
think,  in  contradistinction  to  the  previous  clause  of  the  section, 
"  except  the  buyer  shall  accept  part  of  the  goods  so  sold  "  (the 
acceptance  being  one  thing,  and  the  receipt  quite  another),  and 
not  in  contradistinction  to  the  particular  mode  of  receipt,  whether 
manual,  constructive,  or  symbolical.  He  shall  (1)  accept ;  but  he 
shall  not  only  accept,  but  he  must  (2)  also  actually  receive.  The 
term  here,  "  accept,"  is  clearly  not  used  as  a  synonym  for  "  re- 
ceive "  (which  is  one  of  its  meanings,  although  a  minor  one) ; 
for  we  would  then  have  the  absurd  tautology,  "  he  must  receive 
and  actually  receive, "  which  would  be  nonsense.  J>ut  the  term 
"  accept,"  more  properly,  and  as  used  in  the  statute  unquestion- 
ably means,  the  approving,  the  recognition  as  an  act  of  tlie  mind, 
of  the  particular  subject  as  the  subject  of  the  contract;  which 


318  COMMENTARIES   ON   SALES.  [BOOK   IV. 

accepting,  recognising,  approving,  taking  to  as  the  subject  of  the 
contract,  is  essentially  different  from  the  actual  receipt  of  the 
goods,  whether  such  actual  receiving  be  a  manual,  constructive, 
or  symbolical  process.  The  subject  of  the  purchase,  then,  to 
meet  the  requirements  of  the  statute,  must  not  only  have  the 
purchaser's  acceptance,  acceptation,  recognition  as  an  acceptance, 
or  takin'j-  to  of  the  subject  as  the  subject  of  the  contract,  but  in 
addition  to  this  act  of  the  mind  as  accepting, —  thus  recognising, 
approving,  and  taking  to  the  particular  subject,  as  an  act  of  the 
mind,  as  the  subject  of  the  contract,  —  there  must  be  the  actual 
receipt  of  the  subject,  which  actual  receipt,  as  we  have  seen, 
may  be,  in  the  customary  manner  of  receipts  at  common  law,  — 
manual,  symbolical,  or  constructive. 

So,  again,  as  the  receipt  may  be  manual,  symbolical,  or  construc- 
tive in  cases  generally  where  these  different  modes  of  receipt  are 
respectively  good  at  common  law,  so  the  acceptance  may  be  either 
express  or  implied ;  and  where  not  expressed  has,  in  many  cases, 
been  implied ;  where,  after  the  receipt,  there  lias  been  such  deal- 
ing with  the  goods  by  the  vendee,  or  such  delay  by  him  in  failing 
to  repudiate  the  delivery,  as  fairly  to  raise  the  implication  that 
he  has  not  only  actually  received  the  goods  but  has  also  actually 
accepted  them.  The  acceptance  is  the  act  of  the  mind,  and  fixes 
the  subject  of  the  contract ;  the  receipt  by  the  vendee,  after  or 
connected  with  the  acceptance,  is  the  transfer  of  the  possession 
and  property  of  and  in  the  goods  to  him,  and,  under  the  statute, 
not  only  proves  the  contract,  but  in  effect  vests  the  title  in  the 
goods  in  him.  So,  as  an  act  of  the  mind,  independent  of  the 
manual  act  of  the  delivery  and  receipt,  the  acceptance  may  be 
either  prior  to,  concurrent  with,  or  subsequent  to  the  receipt. 
Yet  such  acceptance  as  an  act  of  the  mind,  though  treated  in  the 
statute  as  an  entity  independent  of  and  apart  from  the  actual 
receipt,  may  not  only,  as  w^e  have  seen,  be  implied  by  laches,  or  by 
a  subsequent  dealing  with  the  goods  by  the  vendee  after  their 
receipt ;  but,  manifestly,  in  many  cases  such  acceptance  may  be 
implied  from  the  actual  receipt  itself.  This  fact  will  probably 
account  for  the  confounding,  in  many  of  the  cases,  of  the  accept- 
ance of  the  goods  with  their  receipt,  as  though  in  all  cases  the  re- 
ceipt implied  the  acceptance  ;  or  that  the  words  in  the  statute, 
"  accept  and  actually  receive,"  meant  merely  "  receive." 

As  both  the  acceptance  and  actual  receipt  are  required  to  take 
the  case  out  of  the  statute,  it  therefore  necessarily  follows  that 
where  there  has  been  either  an  acceptance  without  the  receipt,  or 
a  receipt  without  the  acceptance  of  part  or  the  whole  of  the 
goods,  there  is  no  binding  contract ;  and  hence,  where  both  of 


PART   VI.]  THE   ACCEPTANCE.  319 

these  do  not  concur,  neither  party  to  the  inchoate  contract,  seller 
or  buyer,  is  bound  by  it.^ 

A  purchaser  of  goods  may  actually  receive  them ;  may  examine 
them,  and  reject  them.  Rejection,  here,  is  the  correlative  not  of 
the  actual  receipt,  but  of  the  acceptance.  He  has  received  them ; 
has  not  accepted  them,  but  has  rejected  them.  Not  having  pre- 
viously accepted  them,  the  rejection  here  is  the  exact  opposite  of 
the  acceptance  which  the  statute  renders  necessary  in  addition 
to  the  actual  receipt  to  bind  the  contract.  This,  it  seems  to  us, 
shows  in  a  few  words  the  meaning  of  the  acceptance  and  actual 
receipt  named  in  the  statute,  and  furnishes  the  necessary  clue  by 
which  to  judge  as  to  whether  any  particular  case  has  or  has  not 
been  taken  out  of  the  statute. 

Again,  at  the  time  of  the  purchasing  of  the  goods,  the  pur- 
chaser may  then  examine  them,  approve  of  them,  accept  them  as 
the  very  subject  of  the  contract ;  but  this  approval,  acceptance, 
taking  to  the  goods  as  the  subject  of  the  contract,  must  be  ac- 
companied with  or  followed  by  an  actual  receipt.  And  unless 
there  is,  in  addition  to  the  acceptance,  also  the  actual  receipt,  the 
requirements  of  th^statute  are  not  complied  with.  From  this  it 
follows,  that,  as  the  contract  is  in  fieri  until  there  is  both  an 
acceptance  and  receipt,  when  the  purchaser  has  received  the 
goods,  and  has  not  accepted  them,  he  may  reject  them.  So.  again, 
where  there  has  been  an  "  acceptance  "  of  them,  but  no  actual 
receipt,  the  contract  still  remaining  in  fieri  ;  he  may  at  his  elec- 
tion, notwithstanding  his  previous  "  acceptance,"  refuse  their 
"actual  receipt"  (^the  refusing  to  receive,  here,  being  the  correl- 
ative not  of  the  acceptance,  but  of  the  actual  receipt),  and  thus, 

1  If  we  seek  for  the  meaning  of  the  accepted    them.      And    it   is   immaterial 

enactment,  judging  merely  from  its  words,  whether  his  refusal  to  take  the  goods  be 

and    without    reference    to    decisions,    it  reasonable  or  not.    If  he  refuses  tlie  goods, 

seems  that  this  provision  is  not  complied  assigning  grounds   false  or   frivolous,   or 

with  unless  the  two  things  concur  :    the  assigning  no  reasons  at  all,  it  is  still  clear 

buyer  must  accept,  and  he  must  actually  that  he  does  not  accept  the  goods,  and  the 

receive  part  of  tlie  goods  ;    and  the  con-  reason  is  not  whether  he  ought  to  accept, 

tract  will  not  be  good  unless  he  does  both,  but  whether  he  has  accepted  them.     The 

And  this  is  to  be  borne  in  mind  ;   for  as  question  of  acceptance  or  not  is  a  question 

there  may  be  an  actual  receipt  without  as  to  what  was  the  intention  of  the  buyer 

any  acceptance,  so  there  may  be  an  ac-  as  signified  by  his  outward  acts.     The  re- 

ceptance   without   any   receipt.      In   the  ceipt  of  part  of  the  goods  is  the   taking 

absence  of  authority,  and  judging  merely  possession  of  them.    When  the  seller  gives 

from  the  ordinary  meaning  of  language,  to  the  buyer   the  actual    control   of  the 

one  would  say  that  an  acceptance  of  part  goods,  and  the  buyer  accepts  such  con- 

of  the  goods  is  an  assent  by  the  buyer,  trol,  he  has  actually  received  them.    Such 

meant  to  be  final  ;  that  this  part  of  the  a  receipt  is  often  evidence  of  an  accept- 

goods  is  to  be  taken  by  him  as  his  prop-  ance,  but  it  is  not  the  same  thing  ;  indeed 

erty  under   the   contract,  and   as   so   far  the  receipt  by  the  buyer  may  be,  and  often 

satisfying  the  contract.      So  long  as  the  is  for  the  express  purpose  of  seeing  whether 

buyer  can,  without  self-contradiction,  de-  he  will  accejit  or  not.    Blackburn  on  Sales 

clare  that  the  goods  are  not  to  be  taken  in  (2d  ed.),  ItJ,  17- 
fulfilment   of  the   contract,    he    has    not 


620 


COMMENTARIES   ON   SALES. 


[book  IV. 


in  either  of  these  cases,  put  an  end  to  the  inchoate  contract ;  be- 
cause, both  the  acceptance  and  the  actual  receipt  being  neces- 
sary bei'ore  such  a  contract  "  shall  be  allowed  to  be  good  "  under 
the  statute,  the  failure  of  either  of  these  necessary  ingredients 
will  k^ave  the  contract  such  as  shall  not  "  be  allowed  to  be  good  " 
under  the  statute,  and  therefore  incapable  of  being  enforced. 

We  examine  the  cases  on  the  subject  chronologically  and  ex- 
haustively. In  Searle  v.  Keeves  ^  there  was  no  actual  receipt 
of  the  goods  in  the  sense  of  a  manual  receipt.  The  sale  was  of 
a  quantity  of  rice  in  the  warehouse  of  B.,  a  third  party ;  and  it 
was  held  by  Eyre,  C.  J.,  that  the  delivery  of  an  order  by  the 
vendor  to  the  vendee,  on  B.,  which  was  delivered  by  the  vendee 
to  B.'s  warehouseman,  was  a  delivery  of  the  goods  to  take  the 
case  out  of  the  statute.^  So,  in  Chaplin  v.  Rogers,-^  after  a  bar- 
gain and  sale  of  a  stack  of  hay  between  the  parties  on  the  spot, 
evidence  that  the  vendee  actually  sold  part  of  it  to  another  per- 
son, by  whom,  though  against  the  vendee's  approbation,  it  was 
taken  away,  the  jury  having  found  that  there  was  an  acceptance 
of  the  hay  by  the  defendant,  and  a  delivery  of  it  to  him,  the 
court  held  that  there  was  sufficient  evidence  of  acceptance  and 
delivery  to  the  defendant  to  leave  to  the  jury,  and  on  their 
so  finding,  as  above,  to  take  the  case  out  of  the  statute.^ 


1  2  Esp.  598. 

2  A.  agrees  to  sell  goods  to  B.,  who 
pays  a  certain  sum  of  money  as  earnest ; 
the  goods  are  packed  in  cloths  furnished 
by  B.,  and  deposited  in  a  building  be- 
longing to  A.  till  B.  shall  send  for  them ; 
but  A.  declares  at  the  same  time  that  they 
shall  not  be  carried  away  till  he  is  paid. 
This  not  being  a  delivery  to  B.,  A.  cannot 
maintain  an  action  for  goods  sold  and  de- 
livered. Goodhall  v.  Skelton,  2  H.  Bl. 
316.  But  a  shilling  earnest  having  been 
paid  to  bind  the  bargain,  an  action  for 
goods  bargained  and  sold  would  have  been 
sustained.  Simmons  v.  Swift,  5  B.  &  C. 
277;  Atkinson  v.  Bell,  8  B.  &  C.  857; 
Boulter  v.  Arnott,  1  Cr.  &  M.  333  ;  Nor- 
man V.  Phillips,  14  M.  &  W.  277:  Cun- 
lifife  V.  Harrison,  6  Ex.  903  ;  Acraman  v. 
Morrice,  8  C.  B.  849  ;  Bushell  v.  Wheeler, 
15  Q.  B.  442  ;  Edan  v.  Dudtield,  1  Q.  B. 
302 ;  Lillywhite  v.  Devereaux,  15  M.  &  W. 
285,  291;  Elliott  v.  Heginbotham,  2  C.  & 
K.  545  ;  Alexander  v.  Gardner,  1  Scott, 
630  ;  Archer  v.  Baynes,  5  Ex.  625  ;  Sive- 
right  V.  Archibald,  17  Q.  B.  103  ;  Acebal 
V.  Levy,  10  Bing.  376  ;  Ashcroft  v.  Mor- 
rin,  4  M.  &  G.  450. 

3  1  East,  192. 

*  In  so  holding.  Lord  Kenyon,  C.  J., 
in  delivering  the  judgment  of  the  court, 


said  :  "It  is  of  great  consequence  to  pre- 
serve unimpaired  the  several  provisions  of 
the  statute  of  frauds,  which  is  one  of  the 
wisest  laws  in  our  .statute  book.  My 
opinion  will  not  infringe  upon  it ;  for  here 
the  report  states  that  the  question  was 
specifically  left  to  the  jury  whether  or  not 
there  was  an  acceptance  of  the  hay  b}'^  the 
defendant,  and  they  have  found  that  there 
was,  which  puts  an  end  to  any  question 
of  law.  I  do  not  Tuean  to  disturb  the  set- 
tled constiTictiou  of  the  statute,  that  in 
order  to  take  a  contract  for  the  sale  of 
goods  of  this  value  out  of  it  there  must  be 
either  a  part  delivery  of  the  thing  or  a 
part  payment  of  the  consideration,  or  the 
agreement  must  be  reduced  to  writing  in 
the  manner  therein  specified;  but  I  am 
not  satisfied  in  this  case  that  the  jury 
have  not  done  rightly  in  finding  the  fact 
of  a  delivery.  VVhere  goods  are  ponder- 
ous, and  incapable  as  here  of  being  handed 
over  from  one  to  another,  there  need  not  be 
an  actual  delivery ;  but  it  may  be  done  by 
that  which  is  tantamount,  such  as  the  de- 
livery of  the  key  of  a  warehouse  in  which 
the  goods  are  lodged,  or  by  delivery  of 
other  indicia  of  property.  Now,  here  the 
defendant  dealt  with  this  commodity  after- 
wards as  if  it  were  in  his  actual  posses- 
sion ;    for  he  sold  part  of  it  to  another 


PART   VI.]  THE    ACCEPTANCE.  321 

Kent  V.  Hiiskinson^  was  an  action  for  goods  sold  and  delivered; 
the  subject  of  the  action  being  a  bale  of  sponge  of  a  greater 
value  than  .£10.  The  defendant  gave  a  verbal  order  for  the 
sponge,  but,  on  its  receipt,  the  defendant  after  examination  of  it 
refused  to  accept  it.  The  plaintiff  having  been  nonsuited,  on  the 
ground  that  the  case  was  within  the  seventeenth  section  of  the 
statute,  on  motion  to  set  aside  the  nonsuit  it  was  claimed  that 
the  receipt  of  the  sponge  and  the  opening  of  the  bale  and  subject- 
ing it  to  examination  was  an  acceptance,  even  though  the  qual- 
ity of  the  sponge  proved  to  be  different  from  that  which  was 
purchased,  which  was  a  question  for  the  jury.  But  the  court 
sustained  the  nonsuit.  Lord  Alvanley,  C.  J.,  said :  "  The  only 
affirmance  of  any  contract  to  be  collected  from  the  evidence  is  an 
affirmance  of  some  sort  of  order  for  some  sort  of  sponge,  and  it 
appears  that  the  moment  the  article  reached  the  defendant,  and 
was  examined,  he  sent  it  back  to  the  plaintiff,  saying  it  was  not 
that  sort  of  sponge  which  he  wanted  and  had  ordered.  The 
defendant's  letter  cannot,  as  it  appears  to  me,  be  construed  into 
anything  like  an  acceptance,  so  as  to  bring  the  case  within  the 
exception  relied  on."  And  Heath,  J. :  "According  to  the  words 
of  the  statute,  the  exception  does  not  apply,  unless  the  vendee 
both  receive  and  accept.  Now  that  acceptance  I  cannot  consider 
to  be  any  other  than  the  ultimate  acceptance,  and  such  as  com- 
pletely/ affirms  the  contract.^'  And  Chambre,  J.  "  Certainly  there 
was  no  acceptance  of  the  goods  by  the  defendant,  unless  we  can 
consider  a  refusal  to  accept  as  amounting  to  an  acceptance." 
This  case  is  a  noted  one,  and  deserves  constantly  to  be  kept  in 
mind,  when  later  cases  are  being  considered. 

The  question  arose  in  Hinde  v.  Whitehouse^  whether  sales  by 
auction  are  within  the  statute.  It  was  not,  however,  necessary 
there  to  decide  the  question.^  In  this  case,  after  the  biddings  had 
closed,  samples  of  half  a  pound  weight  from  each  hogshead  of  the 
sugar  which  was  sold,  and  which  samples  were  drawn  from  the 
hogsheads  after  the  sugar  had  been  weighed,  were  delivered  to 
and  accepted  by  the  purchaser,  according  to  the  usual  practice  at 

person.     Therefore  as  upon  the  whole  jus-  tion  are  within  the  statute  on  the  ground 

tice  has  been  done,  the  verdict  ought  to  of  the  publicity  attending  such  sales.     In 

stand."      The   other  judges   agreed   that  Hinde  v.  Whitehouse,   7   East,   558,  568, 

there  was  sufficient  evidence  of  a  delivery  Lord  EUenborough  was  very  clearly  of  the 

to   and   acceptance   by  the  defendant   to  opinion  that  such  sales  are  within  the  stat- 

leave  to  the  jury.  ute  ;  and  it  has  long  since  been  so  settled. 

1  3  B.  &  P.  233.  See  Kenworthy  v.  Schofield,  2  B.  &  C.  945; 

2  7  East,  558.  Walker  i;.  Constable,  1  B.  &  P.  306;  Era- 
8  It  was  very  strongly  questioned  by  mersou  i".  Healis,  2  Taunt.  38  ;  Wliite  v. 

Lord  Mansfield,  C.  J.,  and  by  Wilmot,  J.,      Procter,  4  Taunt.  209;  Kenieys  v.  Proctor, 
in  Simon  v.  Metivier,  1  W.  Bl.  599,  601     3  Ves.  &  B.  57. 
(s.  c.  3  Burr.  1922),  whether  sales  by  auc- 

VOL.    II.  21 


322  .  COMMENTARIES   ON   SALES.  [bOOK  IV. 

such  sales,  as  part  of  his  purchase,  to  make  up  the  quantity 
wei^-hcd.  The  court  held  that,  assuming  the  sale  by  auction  to 
be  within  the  seventeenth  section  of  the  statute,  there  had  been  a 
sullicicnt  acceptance  and  receipt  of  part  of  the  sugar  to  take  the 
case  out  of  the  statute.  Lord  EUenborough,  in  delivering  the 
judo-mcnt  of  the  court,  said:  "  Inasmuch  as  the  half-pound  sample 
of  sugar  out  of  each  hogshead  in  this  case,  is,  by  the  terms  and 
conditions  of  sale,  so  far  treated  as  a  part  of  the  entire  bulk  to  be 
delivered,  that  it  is  considered  in  the  original  weighing  as  consti- 
tuting a  part  of  the  bulk  actually  weighed  out  to  the  buyer,  and  to 
be  allowed  for  specifically,  if  he  should  choose  to  have  the  com- 
modity re-weighed ;  I  cannot  but  consider  it  as  part  of  the  goods 
sold  under  the  terms  of  the  sale,  accepted  and  actually  received  as 
such  hy  the  buyer.  And,  although  it  be  delivered  partly  alio  mtuitu, 
namely,  as  a  sample  of  quality,  it  does  not  therefore  prevent  its 
operating  to  another  consistent  intent  also,  in  pursuance  of  the  pur- 
poses of  the  parties  as  expressed  in  the  conditions  of  sale,  namely, 
as  a  part  delivery  of  the  thing  itself,  as  soon  as  in  virtue  of  the 
bargain  the  buyer  should  be  entitled  to  retain,  and  should  retain 
it  accordingly."  But  in  Klinitz  v.  Surry ,i  where  it  was  held  by 
Lord  EUenborough  that  when  goods  are  sold  by  sample,  and  the 
sample  delivered  is  part  of  the  bulk,  standing  as  a  distinct  parcel, 
so  that  the  bulk  as  sold  as  an  ascertained  quantity  is  diminished 
by  the  sample,  there  there  is  a  part  delivery ;  the  jury  having 
found  that  the  bulk  and  sample  did  not  correspond,  the  verdict, 
in  an  action  against  the  defendant  for  not  accepting  the  goods, 
was  for  the  defendant.^  The  holding  in  this  case  accords  with 
the  views  of  the  statute  expressed  by  us  in  fully  examining  the 
subject  of  sales  by  sample,  infra. 

In  Hodgson  v.  Le  Bret,^  in  an  action  for  goods  sold  and  deliv- 
ered, the  evidence  was  that  the  defendant  came  to  the  plaintiff's 
shop,  and  purchased  of  him  a  piece  of  linen,  and  several  pieces  of 
muslin,  at  separate  prices.  The  defendant  wrote  her  name  upon 
the  linen  at  the  time  ;  but  the  muslin  was  not  then  produced. 
None  of  the  goods  were  sent  home  to  her  till  some  months  after- 
wards, when  she  refused  to  receive  them,  saying  that  she  had  not 
bought  them.  Lord  EUenborough  held,  that  if  the  defendant's 
purpose  in  writing  her  name  upon  the  linen  was  thereby  to  denote 
that  she  had  purchased  it,  and  to  appropriate  it  to  her  own  use, 

'  5  Esp.  267.  of  the  goods  were  delivered,  nor  anything 

2  And  see  Cooper  v.  Elston,  7  T.  R.  14,  given  by  the  buyer  to  bind  tlie  bargain, 

where  it  was  held  that  a  sale  of  goods  for  nor  any  memorandum  of  the  bargain  in 

more  than  £10,  by  sample,  in  one  place  to  writing. 

be  afterwards  delivered  at  another,  is  within  ^  i  Camp.  233. 

the  17th  section  of  the  statute,  if  no  part 


PART   VI.]  THE   ACCEPTANCE.  323 

that  would  be  sufficient  as  to  the  linen  itself;  but  that  as  nothing 
had  been  written  on  the  muslins,  and  as  they  had  not  even  been 
produced  to  the  defendant  along  with  the  linen,  the  sale  as  to 
them  was  void  by  the  statute.  And,  in  Anderson  v.  Scot,^  which 
was  special  assumpsit  for  the  non-delivery  of  wine,  it  appeared 
that  the  plaintiff  went  into  the  defendant's  cellar,  and  selected 
several  pipes  of  wine,  for  which  he  agreed,  by  parol,  to  pay  a 
certain  price.  The  spills,  or  pegs  by  which  the  wine  is  tasted, 
were  then  cut  off ;  plaintiff's  initials  were  marked  on  the  casks  by 
defendant's  clerk  in  his  presence,  and  plaintiff  took  the  gauge 
numbers.  It  was  objected  that  this  sale  was  within  the  statute ; 
but  Lord  EUenborough  held  that  the  cutting  off  of  the  spills,  and 
the  marking  of  plaintiiT's  initials  on  -the  casks  by  defendant's 
agent,  in  the  presence  of  all  the  parties,  amounted  to  a  delivery. 
It  was  then  contended  that  this  proved  the  contract  laid  in  the 
declaration  to  have  been  performed ;  the  plaintiff  having  com- 
plained of  a  non-delivery  of  the  wine,  and  having  proved  a  deliv- 
ery. To  which,  Lord  EUenborough  observed,  that  although  there 
had  been  an  incipient  delivery,  sufficient  to  take  the  case  out  of 
the  Statute  of  Frauds,  yet  the  delivery  not  having  been  perfected, 
plaintiff  had  a  right,  in  that  form  of  action,  to  recover  damages 
for  the  non-completion  of  the  contract. 

In  this  case  we  think  the  contention  of  the  counsel  was  right, 
and  the  decision  of  Lord  EUenborough,  wrong.'  If,  as  was  held 
in  the  case,  the  statute  was  satisfied,  then  there  must  have  been 
an  acceptance  of  the  goods  and  actual  receipt  of  them.  There 
was,  then,  the  statutory  evidence  of  the  contract  of  sale,  which 
contract  was  "  good,"  and  under  which,  as  at  common  law,  both 
the  property  and  the  possession  absolutely  passed  to  the  vendee. 
Then,  there  was  the  actual  receipt  and  the  actual  delivery.  The 
statute  makes  no  provision  for  an  "  incipient"  receipt.  It  must  be 
an  actual  receipt,  but  as  we  have  seen,  tbat  actual  receipt  may,  like 
any  ordinary  actual  receipt  at  common  law,  be  manual,  symbolical, 
or  constructive  ;  where,  at  common  law,  these  particular  modes  of 
receipt  were  and  are  good.  The  action,  then,  as  both  the  prop- 
erty and  constructive  or  symbolical  possession  had  passed  to  the 
vendee,  should  not  have  been  for  a  non-delivery  ;  for,  as  was 
proved,  contended,  and  held,  there  had  been  a  delivery, —  an 
"actual"  delivery  and  receipt.  As  both  the  property  and  pos- 
session in  the  goods  had  passed,  the  withholding  was  wrong- 
ful, and  the  action  should  have  clearly  been  in  trover  or  replevin, 
where  the  old  common-law  action  of  detinue  has  become  obsolete. 
The  acceptance  and  actual  receipt  in  this  case  were  of  the  whole 

1  1  Camp.  235,  n. 


324  COMMENTARIES    ON    SALES.  [bOOK   IV. 

goods.     This,  therefore,  is  distinguishable  —  a  fact,  not  generally 

observed from  the  case  where  there  have  been  an  acceptance 

and  receipt  of  only  part  of  the  goods.  In  this  latter  case,  the 
contract  is  proved  ;  but,  except  where  the  part  is  delivered  in  the 
name  of  the  whole,  so  as  to  amount  to  an  actual  delivery  and 
receipt  of  the  whole,  there  is  no  transmutation  of  the  possession 
to  the  vendee,  except  in  the  part  actually  delivered  and  received. 
Hence,  for  the  undelivered  part,  the  action,  as  in  Anderson  v. 
Scot,i  for  the  non-delivery  of  the  goods,  would  well  lie ;  but  not, 
we  think  is  quite  manifest,  where,  as  in  the  case  of  Anderson  v. 
Scot,  there  have  been  both  an  acceptance  and  "  actual  receipt," 
and,  therefore,  necessarily,  not  what  Lord  EUenborough  calls  an 
"  incipient,"  but  an  "  actual "  delivery  of  the  whole.  We  consider 
this  subject  more  fully  and  particularly  in  the  latter  part  of  this, 
and  in  the  next  succeeding  Part  of  this  work.  And  see  Wright 
V.  Percival,^  stated  infra. 

It  was  held,  by  Chambre,  J.,  in  Hart  v.  Sattley,^  where  goods 
were  ordered  verbally,  to  be  shipped  by  a  carrier,  who  had  been 
in  the  habit  of  receiving  goods  for  the  purchaser  from  the  vendor, 
that,  under  the  circumstances,  the  purchaser  must  be  considered 
as  having  constituted  the  carrier  his  agent  to  accept  and  receive 
the  goods.* 

Elmore  v.  Stone,^  was  an  action  brought  to  recover  the  price  of 
two  horses,  which  it  was  contended  had  been  sold  to  the  defend- 
ant. The  price  for  the  horses  having  been  fixed,  the  defendant 
sent  the  plaintiff  word  to  keep  the  horses  at  livery  for  him,  and 
the  plaintiff  then  removed  the  horses  out  of  his  stable  into  another 
stable.  It  was  claimed  that  such  a  constructive  delivery  would 
not  avail  to  take  the  case  out  of  the  statute.  The  court  held  that 
the  horses  were  completely  the  property  of  the  defendant,  and 
that  when  they  stood  at  the  plaintiff's  stables,  they  were  in  effect 
in  the  defendant's  possession,  the  plaintiff's  lien  being  gone,  so 
that  he  could  not  have  retained  the  horses,  although  he  had  not 

1  1  Camp.  235,  n.  statute.     Generally  the  carrier,  though  he 

'^  8  L.  J.  N.  s.  Q.  B.  258.  is  constituted  the  agent  to  carry  and  to 

8  3  Camp.  528.  deliver  the  goods  for  the  shipper,  is  not 

*  As  in  this  case  the  order  was  for  a  the  agent  to  "accept "  them,  or  to  actually 

particular  article,  a  hogshead  of  gin,  the  receive  them   for  the  vendee,  within  the 

case  probably  means  no  more  than  that  statute,  to  bind  the  vendee.     See  Hanson 

tlie  carrier  in  this  case  had  the  authority  t-.  Armitage,  5  B.  &  Aid.  537;  Johnson  v. 

of  the  vendee  to  receive  the  goods  for  him.  Dodgson,    2  M.    &  W.   656  ;   Norman   v. 

And  see  Astey  v.  Emery,  4  M.  &  S.  262,  Thillips,    14    M.    &   W.    277  ;     Hunt   v. 

stated  infra,  where  it  was  held  that  the  Heoht,  8   Ex.    814  ;   Acebal   v.    Levy,   10 

carrier  was  not  the  purchaser's  agent  for  Bing.  376  ;  Meredith  v.  Meig,  2  E.  "&  B. 

receiving  the  goods  under  the  facts  in  that  370  ;  Cusack  v.  Robinson,  1  B.  &  S.  299  ; 

case.    "Accepting  "is  again  the  term  used  Hart  v.  Bush,  E.  B.  &  E.  494;    Smith  v. 

in  this  case.     It  is  one  of  the  cases  where,  Hudson,  6  B.  &  S.  431  ;  and  see  our  full 

evidently,  the  statutory  term  is  carelessly  discussion  of  the  subject,  infra. 

used,  as  though  it  meant  the  actual  receipt  ^  1  Taunt.  458. 

named,  instead  of  the  "accepting"  of  the 


PART   VI.]  THE   ACCEPTANCE.  325 

received  payment  for  them.  Lord  Mansfield,  in  delivering  the 
judgment,  said  :  "  There  are  many  cases  of  constructive  delivery, 
where  the  price  of  goods  may  be  recovered  in  a  count  for  goods 
sold  and  delivered,  instead  of  a  count  for  goods  bargained  and 
sold.  A  common  case  is  that  of  goods  at  a  wharf,  or  in  a  ware- 
house, where  the  usual  practice  is,  that  the  key  of  the  warehouse 
is  delivered,  or  a  note  is  given  addressed  to  the  wharfinger,  who 
in  consequence  makes  a  new  entry  of  the  goods  in  the  name  of 
the  vendee,  although  no  transfer  of  the  local  situation  or  actual 
possession  takes  place.  Thus  in  the  present  case,  after  the 
defendant  had  said  that  the  horses  must  stand  at  livery,  and  the 
plaintiff  had  accepted  the  order,  it  made  no  difference  whether 
they  stood  at  livery  at  the  vendor's  stable,  or  whether  they  had 
been  taken  away  and  put  in  some  other  stable.  The  plaintiff 
possessed  them  from  that  time,  not  as  owner  of  the  horses,  but  as 
any  other  livery  stable  might  have  them  to  keep." 

Assumpsit  was  brought  in  Astey  v.  Emery ,^  for  goods  sold  and 
delivered.  The  facts  were  that  L.,  a  corn-factor  at  N.,  agreed  to 
sell  barley  of  the  plaintiff  to  the  defendant,  to  be  delivered  at  L.'s 
warehouse  at|D.,  to  go  by  the  first  boat  of  L.  which  went  from  N. 
to  D.,  at  38s.  per  quarter,  which  was  a  higher  price  on  account  of 
it  having  to  be  delivered  at  L.'s  expense.  The  barley  being  then 
in  the  hands  of  T.,  the  defendant  desired  him  to  see  it  delivered 
and  measured  and  put  up  properly.  The  barley  was  sent  by  L.'s 
first  boat,  and  the  invoice  was  delivered  to  the  defendant,  who 
requested  time  to  pay,  but  afterwards  refused  to  receive  ^  the  bar- 
ley. It  was  held  that  the  defendants'  having  appointed  the  par- 
ticular boat,  and  having  desired  T.  to  inspect  the  loading,  did  not 
take  the  case  out  of  the  statute.  The  case  was  clearly  correctly 
decided,  as  there  was  no  actual  receipt  by  the  defendant,  the 
goods  being  sold  to  be  delivered  to  the  defendant  at  his  ware- 
house at  D.,  and  therefore  the  receipt  by  the  carrier  at  N. 
was  not  a  receipt  by  the  defendant  at  D.  This  is  really 
the  gist  of  the  decision ;  Bayley,  J.,  saying :  "  At  the  time 
when  T.  was  to  inspect  the  loading  of  the  goods,  it  is  plain  that 
the  vendee  had  no  right  to  have  them,  for  they  were  to  be  de- 
livered at  D."  And  Dampier,  J.,  "  This  is  no  more  than  the 
case  of  a  farmer  who  sells  his  corn  to  a  miller  to  be  delivered  at 
the  mill."  Lord  Ellenborough  uses  the  term  "  acceptance;"  but 
it  is  done  carelessly  as  though  it  were  synonymous  with  the 
"  receipt "  of  the  statute.     The  facts  seem  to  show  an  acceptance 

'  4  M.  &  S.  262.  the  "actual  receipt"  required  by  the  stat- 

2  "Accept"  is  the  term  used  in  the  ute.     Tlie  cases  are  very  numerous,  botli 

reporter's  note  of  the  case.     And  througli-  in  England  and  in  tliis  country,  where  this 

out  the  whole  case  "accept"  is  improperly  mistake  is  ma<l(',  the  inaccuracy  leading  to 

used  as  though  it  were  synonymous  with  many  unsound  decisions. 


326 


COMMENTARIES   ON   SALES. 


[book   17. 


of  the  goods  within  the  meaning  of  the  statute;  but  that  the 
contract  was  rescinded  by  the  defendant  by  his  refusal  to  receive 
them.  The  contract  was  here,  clearly,  so  far  completed,  as  that 
it  could  have  been  enforced,  but  for  the  want  of  the  "  actual 
receipt"  required  by  the  statute.^ 

The  case  of  Blenkiusop  v.  Clayton,^  is,  in  principle,  very 
similar  to  Astey  v.  Emery .^  In  Blenkinsop  v.  Clayton,  as  in 
Astey  V.  Emery,  there  seems  to  have  been  ample  evidence  of  an 
acceptance,"*  but  the  question  really  rose  as  to  the  actual  receipt. 
After  the  defendant,  in  Blenkinsop  v.  Clayton,  had  bought  the 
horse  which  was  the  subject  of  the  action,  he  brought  a  chapman 
to  the  vendor's  stables,  and  stating  to  him  that  he  had  bought  the 
horse,  offered  to  sell  it  to  him  at  a  profit  of  £5,  which  the  other, 
discovering  a  supposed  unsoundness,  declined  ;  in  consequence  of 
which  discovery  the  defendant  declined  the  purchase.  The  plain- 
tiff, to  prove  that  there  was  an  actual  receipt  by  the  defendant, 
relied  on  Chaplin  v.  Rogers,^  Elmore  v.  Stone,^  and  Searle  v. 
'Eeeves,'  stated  supra.  The  defendant  denied  that  there  was 
any  constructive  delivery.  The  court  held  that  there  was  some 
evidence  of  a  delivery  for  the  jury,  and,  on  that  ground,  ordered 
a  new  trial.  The  court,  however,  evidently  thought  the  evidence 
of  an  actual  receipt  very  slight,  as  distinguishing  it  from  Chaplin 
V.  Rogers ;  Gibbs,  C.  J.,  saying :  "  This  is  very  different  from  the 
case  of  the  hay-stack,  for  there  nothing  more  could  be  done  to 
confer  a  possession."  The  case  shows,  though,  as  does  Astey 
V.  Emery,  the  material  distinction  between  the  accepting  and  the 
actual  receipt  required  by  the  statute. 

In  Talver  v.  West,^  as  in  Hinde  v.  Whitehouse  ^  and  Klinitz  v. 
Surry ,1^  stated  supra,  p.  322,  the  reliance  to  take  the  case  out  of 
the  statute  was  placed  on  the  acceptance  and  actual  receipt  of 


1  The  apparent  iuaccm-acy  in  the  hold- 
ing in  Astey  v.  Emeiy,  4  M,  &  S.  262,  has 
escaped  the  notice  of  both  Blackburn  and 
Benjamin.  The  former  able  writer  has 
no  reference  to  it  whatever.  Benjamin 
cites  it  incorrectly  as  sustaining  the  fol- 
lowing position:  "It  is  settled  that  the 
receipt  of  goods  by  a  carrier  or  wharfinger 
appointed  by  the  purchaser  does  not  con- 
stitute an  acceptance,  these  agents  having 
authority  only  to  receive,  not  to  accept, 
the  goods  for  their  employers."  Benjamin 
on  Sales,  §  160.  But  the  ratio  decidendi 
of  Astey  v.  Emery  really  is  that  in  that 
case  the  carrier  had  not  the  authority  of 
the  purchaser  to  "  receive"  the  goods  for 
him  at  all,  the  goods  being  receivable  by 
the  purchaser,  not  at  N.,  where  they  were 
delivered  to  the  carrier  by  the  vendor,  but 
at  D.,  the  contract  in  the  mean  time  being 
rescinded  by  the  purchaser  as  the  effect  of 


his  refusal  to  actually  receive  the  goods. 
In  Anderson  v.  Hodgson.  5  Price,  630,  in 
an  action  for  goods  sold  and  delivered,  a 
nonsuit  was  sustained  where  a  verbal  order 
was  given  for  goods  to  be  left  at  a  named 
quay  till  called  for,  no  acceptance  of  the 
goods  nor  receipt  at  the  quay  by  the  ven- 
dee having  been  shown.  See  Vale  v. 
Bayle,  Cowp.  294;  Dawes  v.  Peck,  8  T.  R. 
330  ;  Dutton  v.  Solomonson,  3  B.  &  P. 
584  ;  Snee  v.  Prescott,  1  Atk.  248. 

^  7  Taunt.  .597. 

8  4  M.  &  S.  262. 

*  See  Blackburn  on  Sales  (2d  ed.), 
p.  29. 

fi  1  East,  192. 

^  1  Taunt.  458. 

^  2  Esp.  598. 

^  Holt,  178. 

®  7  East,  558. 

10  5  Esp.  269. 


PART    VI.]  THE   ACCEPTANCE.  327 

samples  of  the  goods  purchased ;  and  here,  as  there,  it  was  in 
eiifect  held  that  the  delivery  of  a  sample,  which  is  no  part  of  the 
commodity,  will  not  take  the  case  out  of  the  statute ;  but  if 
the  sample  delivered  is  to  be  considered  as  part  of  the  thing 
sold,  it  then  binds  the  contract.  It  is  then  an  execution  of  the 
bargain.  Gibbs,  C.  J.,  in  so  holding,  in  Talvcr  v.  "West,  said, 
"  The  sale  in  this  case  was  complete  when  the  invoice  was  de- 
livered and  the  defendant  afterwards  took  samples.  He  took 
them  for  his  own  use.  They  were  delivered  to  him  as  part  of  the 
bulk,  —  not  as  an  ordinary  sample  to  guide  his  judgment  previous 
to  a  purchase,  but  in  order  to  give  him  possession  of  the  thing 
itself.     The  statute,  therefore,  does  not  apply." 

As  the  statute  provides  that  the  acceptance  and  actual  receipt 
of  '■'•  jpart  of  the  goods  sold"  make  the  contract  good,  no  more 
requiring  any  definite  part  of  the  goods  sold  to  be  so  accepted  and 
received  than  it  prescribes  the  definite  thing  which  is  to  be  given 
as  the  "  something  in  earnest  to  bind  the  bargain,  or  in  part 
payment,"  —  as,  in  the  latter  case,  anything  of  value  is  sufficient 
to  fulfil  the  requirements  of  the  section,  so  the  acceptance  and 
actual  receipt  of  any  part  of  the  commodity  of  the  actual  goods 
sold  is  sufficient  to  take  the  case  out  of  the  statute.  Manifestly, 
then,  as  these  cases  hold,  the  acceptance  and  actual  receipt  of  a 
sample  which  is  no  part  of  the  commodity  or  bulk  of  the  goods 
sold,  although  it  may  be  of  the  same  description,  is  not  an  ac- 
ceptance and  actual  receipt  of  part  of  the  goods  sold.  But,  in 
this  connection,  there  is  this  further  important  point :  While  the 
acceptance  and  actual  receipt  of  a  sample,  as  part  of  the  actual 
commodity  of  the  goods  sold,  is  sufficient  to  take  the  contract  for 
the  sale  of  all  the  goods  sold  out  of  the  contract,  yet,  manifestly 
again,  it  is  sufficient  to  take  the  contract  for  the  goods  sold,  only, 
out  of  the  statute.  Hence  it  follows  that  if,  after  the  sample  has 
been  accepted  and  actually  received,  further  goods  are  delivered 
and  actually  received  as  and  for  the  balance  of  the  goods  sold,  of 
which,  as  a  part,  the  sample  has  been  accepted,  and,  after  their 
receipt  by  the  vendee,  on  an  examination  of  them,  —  and  there 
has  been  no  dealing  with  the  goods  or  laches  on  the  vendee's  part, 
from  which  an  acceptance  could  be  fairly  implied,  —  and  the 
goods  turn  out  to  be  not  according  to  the  sample,  then,  notwith- 
standing the  actual  receipt,  the  vendee  has  the  right  to  refuse  to 
accept  them,  and  can  reject  them,  the  acceptance  and  receipt  of 
the  sample  not  being  an  acceptance  of  goods  not  in  accordance 
with  the  sample,  and  of  which  the  sample  accepted  is  not  a 
"  part."  ^     The  soundness  of  this  principle  can  scarcely  be  ques- 

1  See  Klinitz  i;.  Surry,  5  Esp.  267,  stated  ante,  p.  322. 


328  COMMENTARIES   ON   SALES.  [bOOK   IV. 

tioned  ;  but  it  will  be  found  in  some  of  the  cases  that  this,  like 
the  clear  distinction  between  the  "  acceptance  "  and  the  "  actual 
receipt "  of  the  statute,  has  not  had  the  prominence  accorded  it 
to  which  it  is  entitled.  This  much,  here,  en  passant,  for  the 
present.     We  revert  to  the  subject  again. 

An  action  for  goods  bargained  and  sold  was  brought  in  Howe 
V.  Palmer,^  the  defendant  having  verbally  agreed  to  buy  twelve 
bushels  of  tares  at  <£!  per  bushel  (a  sample  of  which  was  shown 
him),  the  defendant  to  send  to  the  plaintiff's  farm  to  take  them 
away.  The  sample  was  offered  him ;  but  he  declined  taking  it, 
saying  that  he  had  seen  the  tares  on  plaintiff's  premises,  and  that 
he  had  no  immediate  use  for  them,  and  therefore  requested  that 
they  might  remain  there  until  he  wanted  to  sow  them,  which  was 
agreed  to.  The  twelve  bushels  were  subsequently  measured  and 
set  apart  in  the  plaintiff's  granary,  and  orders  were  given  that 
they  should  be  delivered  to  defendant  when  he  should  call  for 
them.  The  court,  pursuant  to  leave  reserved,  made  absolute  a 
rule  for  entering  a  nonsuit.  The  court  here,  as  in  so  many  other 
cases,  fail  to  make  the  clear  distinction  of  the  statute  between 
the  acceptance  and  the  actual  receipt  required  ;  and  therefore  the 
case  is  of  less  value  on  the  subject  than  it  otherwise  would  have 
been,  as  the  points  involved  on  the  question  of  the  acceptance 
apart  from  the  actual  receipt  are  very  nice.  All  of  the  judges, 
Abbott,  C.  J.,  Bayley,  Holroyd,  and  Best,  JJ.,  treat  the  matter, 
in  effect,  as  though  the  "acceptance"  and  "actual  receipt"  of 
the  statute  were  simply  synonymous  terms.  Although  they 
verbally  hold  that  there  was  no  "  actual  acceptance  or  receipt  of 
the  goods,"  —  using  the  terms  "accept,"  "  acceptance,"  as  though 
these  were  merely  convertible  terms  for  the  "  actual  receipt "  of 
the  statute,  —  their  whole  reasoning,  including  their  references 
to  Chaplin  v.  Rogers  ^  and  Elmore  v.  Stone,^  goes  to  show  that 
they  were  dealing  with  the  question  whether  there  had  been  a 
sufficient  constructive  delivery  and  "  actual  receipt "  of  the 
statute,  without  really  touching  the  quite  different  question 
whether  the  facts  met  the  requirements  of  the  statute  as  to  the 
acceptance  by  the  vendee  of  some  part  of  the  goods.* 

1  3  B.  &  Aid.  321.  whether   the   buyer   "had   accepted  and 

2  1  East,  192.  received."]    Now,  if  he  had  once  accepted 

3  1  Taunt.  458.  [here    probably    meaning     received     the 
*  Thus,  Abbott,  C.  J.,  says:  "Unless     whole,  coupled  with  a  sufficient  accept- 

the  buyer  has  accepted  and  received  part  ance]  he  could  not  afterwards  make  any 

of  the  goods  so  sold,  this  case  is  within  objection,  even  if  it  turned  out  that  the 

the  statute,  and  no  action  can  be  brought  tares  did  not  correspond  with  the  sample, 

ou  the  verbal  contract  entered   into  be-  But  it  is  clear  tliat  he  had  a  right  to  make 

tween  the  parties.     Then  the  question  is,  any  objection  at  the  time  when  they  were 

Has  the  buyer  accept edl     [While  only  just  tendered  to  him   for  acceptance.     [Here, 

before   stating   that   the    questions   were  clearly,  meaning  not  "acceptance,"   but 


PART    VI.] 


THE   ACCEPTANCE. 


329 


Tempest  v.  Fitzgerald  ^  is  another  case  where  the  terms  "  ac- 
cept" and  "actually  receive  "  are  confounded.     The  judges  here 


"  receipt."]  If  the  defendant  in  this  case 
had  gone  to  the  phxintifTs  granary  to  de- 
mand the  tares,  and,  upon  inspection,  had 
discovered  that  they  did  not  correspond 
with  the  sam])le,  it  is  impossible  to  say 
that  he  might  not  have  made  the  objec- 
tion. And,  if  so,  it  is  clear  that  there 
■was  no  previous  acceptance  [here  probably 
meaning  constructive  receipt]  on  his  part, 
I  therefore  think  that  this  case  comes 
within  the  very  words  of  this  statute,  to 
which  we  ought  to  give  full  eflect,  and 
not  to  suffer  its  benelicial  provisions  to 
be  evaded  by  subtle  distinctions."  And 
Bayley,  J.,  dealing  with  Chaplin  v.  Rog- 
ers, 1  East,  192,  and  Elmore  v.  Stone,  1 
Taunt.  458,  says  :  "The  two  cases  cited 
are  distinguishable  from  this ;  for,  in 
Chaplin  r.  Rogers,  the  jury  thought  that 
there  was  sufficient  evidence  to  draw  the 
conclusion  of  an  actual  acceptance,  [the 
jury  found  that  there  was  an  acceptance, 
and  also,  apparently,  a  delivery  and  re- 
ceipt ;  the  court  held  that  there  was  a 
constructive  receipt,  equivalent  to  the 
"actual  receipt"  of  the  statute]  inas- 
much as  the  vendee  had  dealt  with  the 
hay  as  his  own.  [It  was,  rather,  on  this 
ground  that  the  court  held  that  a  con- 
structive receipt  was  to  be  implied.]  In 
Elmore  v.  Stone,  the  buj-er  directed  ex- 
pense to  be  incurred ;  and  the  directing 
of  that  expense  was  considered  evidence 
of  an  acceptance  on  his  part.  That  case 
goes  as  far  as  any  case  ought  to  go,  and  I 
think  we  ought  not  to  go  one  step  beyond 
it.  There  is  this  distinction  between  that 
case  and  this,  that  there  an  expense  was 
incurred  on  account  and  by  the  direction 
of  the  buyer  ;  here  there  is  none."  In 
Elmore  v.  Stone,  stated  supra,  p.  324, 
there  was  no  question  as  to  the  acceptance 
within  the  statute.  What  the  case  holds 
is,  that,  under  the  facts  of  that  case,  there 
was  a  constructive  delivery  and  receipt, 
which  met  the  requirements  of  the  statute 
as  to  the  actual  receipt.  So,  Holroyd,  J., 
is  equally  uncertain.  He  says  :  "  In  this 
case  there  has  been  no  actual  receipt  of 
any  part  of  the  goods  sold  within  the 
usual  meaning  of  the  term,  and  I  think 
that  what  has  been  done  ought  not  to  be 
considered,  in  point  of  law,  as  an  accept- 
ance. For,  supposing  that  it  was  made 
part  of  the  contract  in  this  case  that  the 
.seller  should  set  apart  and  measure  the 
thing  .sold,  that  would  not  make  the  act 
of  measuring  amount  to  a  virtual  accept- 
ance, or  receipt  of  the  goods  by  the  buyer. 
For  if  they  were  measured  by  the  seller 


only,  that  would  not  prevent  the  buyer, 
when  he  inspected  them,  from  objecting 
either  to  the  quantity  or  quality  of  the 
goods.  And  unless  it  would  amount  to 
that,  it  does  not  appear  to  me  to  be  «?i 
actual  acceptance  or  receipt  of  the  goods. 
And  supposing  it  not  to  be  part  of  the 
contract,  but  that  directions  were  given  at 
the  time  by  the  buyer  to  the  seller's  agent 
to  measure  the  goods  for  him,  that  would 
not  make  him  the  agent  of  tlie  buyer  so 
far  as  to  make  that  act  amount  to  an 
acceptance  on  his  part.  For  an  authoritj' 
to  measure  the  goods  would  not  give  him 
authority  as  agent  to  accept.  The  buyer 
might  afterwards  object  that  the  articles 
did  not  correspond  with  the  terms  of  the 
contract.  This  case  differs  from  that  of 
Elmore  i'.  Stone  ;  for  there  it  was  agreed 
between  the  parties  that  the  horse  should 
be  transferred  from  the  sale  to  the  livery- 
stable,  and  an  expense  was  incurred  by 
the  purchaser  for  the  keep,  which  could 
not  be  unless  the  horse  was  supjiosed  to 
have  come  into  his  jmssession.  [That  is, 
into  his  actual  receipt.]  I  think,  there- 
fore, that  as  there  was  no  acceptance 
[here  evidently  meaning  receipt]  by  the 
buyer,  this  case  falls  within  the  words  of 
the  statute,  and  that  the  rule  must  be 
made  absolute."  Throughout  the  whole 
of  the  judgment  of  Holroyd,  J.,  the  terms, 
"actual  receipt,"  "acceptance,"  "virtual 
acceptance,"  "actual  acceptance,"  and 
"receipt"  are  all  treated  as  convertible  ; 
and  what  he  seems  to  mean  is  that  there 
was  not  here  that  which  would  amount  to 
a  constructive  receipt,  leaving,  as  in  effect 
do  the  other  judges,  the  question  of  the 
acceptance  apart  from  the  reception  (the 
actual  receipt  of  the  statute)  out  of  the 
question.  The  case  holds  clearly  that, 
for  some  reason,  the  contract  was  within 
the  statute  ;  less  clearly,  that  the  facts 
did  not  show  such  a  constructive  receipt 
as,  in  Chaplin  v.  Rogers  and  Elmore  v. 
Stone,  was  held  to  amount  to  the  actual 
receipt  of  the  statute ;  and  not  at  all,  ex- 
cept as  they  improperly  confound  the 
woods  "acceptance,"  "actual acceptance," 
"  virtual  acceptance,"  with  the  actual  re- 
ceipt of  the  statute,  whether  the  facts 
constituted  an  "acceptance"  within  the 
statute  or  not.  We  are  quite  satisfietl, 
on  grounds  stated  in  a  later  part  of  this 
Part,  that  there  was  an  acceptance  in  this 
case,  fjlackburn  cites  Howe  v.  Palmer, 
3  B.  &  Aid.  321  (Blackburn  on  Sales,  2d 
ed.  29),  using  the  language  of  the  court, 
that  the  facts  "  did  not  amount  to  an  ac- 


1  3  B.  &  Aid.  680. 


330 


COMMENTARIES   ON  SALES. 


[book   IV. 


were  the  same  as  in  the  preceding  case  of  Howe  v.  Palmer.^  The 
case  was  assumpsit  for  the  price  of  a  horse,  the  declaration  con- 
taining counts  for  horses  sold  and  delivered,  and  bargained  and 
sold.  The  facts  were  that  A.  agreed  to  purchase  a  horse  from  B. 
for  ready  money,  and  to  take  him  within  a  time  agreed  upon. 
About  the  expiration  of  that  time,  A.  rode  the  horse,  and  gave 
directions  as  to  its  treatment,  etc.  ;  but  requested  that  it  might 
remain  in  B.'s  possession  for  a  further  time,  at  the  expiration  of 
which  he  promised  to  fetch  it  away  and  pay  the  price  :  to  this  B. 
assented.  The  horse  died  before  A.  paid  the  price  or  took 
it  away.  The  reporter's  note  is:  "Held,  that  there  was  no 
acceptance  of  the  horse  within  the  meaning  of  the  Statute  of 
Frauds."  Here,  again,  both  by  the  judges  and  the  reporter, 
"  acceptance "  is  used  and  treated  as  though  it  meant  "  actual 
receipt."  The  reference  by  Blackburn  to  some  of  the  cases  we 
have  examined  is  thoroughly  applicable  to  Tempest  v.  Fitzgerald,^ 
and  to  Howe  v.  Palmer  ^  as  well :  "  In  all  these  cases  there  seems 
to  have  been  ample  evidence  of  an  acceptance  of  the  goods,  but 
scanty  evidence  of  any  actual  receipt,  if  by  that  is  to  be  under- 
stood a  taking  of  possession."*    In  Tempest  v.  Fitzgerald,  the 


ceptancea?irf  receipt,"  which,  very  clearly, 
they  did  not.  The  case,  however,  is  not 
cited  by  that  able  jurist  under  the  head  of 
"  What  constitutes  an  acceptance  "  (for 
which  it  is  no  authority),  but  under  the 
head,  where  it  more  properly  comes,  of 
"  What  constitutes  an  actual  receipt." 
Benjamin,  with  his  not  unusual  inac- 
curacy (Benj.  on  Sales,  §  187),  cites  it  as 
a  case  to  show  that  the  vendor  not  hav- 
ing lost  his  lien,  no  actual  receipt  by  the 
purchaser  had  taken  ])lace  ;  a  position 
not  really  taken  in  the  case  at  all.  Fisher, 
in  his  Digest,  employing  the  word  used 
by  the  judges,  cites  it  for  that  which  it 
really  ignores,  that  the  facts  did  not 
amount  to  an  "acceptance."  Browne 
(on  Stat,  of  Frauds,  §  324)  also  incor- 
rectly cites  it  as  holding  that  the  "  evi- 
dence was  ample  to  prove  a  delivery."  (!) 
Kent  cites  it  as  holding  (Com.  13th  ed. 
p.  737,  *  503),  that  the  purchase  was  in- 
valid, because  there  had  been  no  meas- 
urement or  separation  at  the  time  of  the 
sale,  even  though  the  seller  afterwards 
measured  the  goods  off  and  set  them 
apart  for  the  vendee  ;  while  a  later  and 
much  less  able  American  writer  cites  it 
for  the  remarkable  purjMse  of  illustrating, 
in  itself,  the  absence  of  "refined  distinc- 
tions," and  in  this  " siviple  case"  (using 
the  term  as  plain,  and  not  in  another  and 
more  appropriate  sense),  by  its  very  clear 
holding,  sustaining  the  view  of  Abbott, 
C.  J.,  "that  the  statute  of  frauds  should 


be  reasonably  construed."  Baker  on  Sales, 
§  21.  The  italics  are  his  own.  The  case, 
like  many  others,  shows  the  confusion  that 
has  existed  in  treating  the  essentially  dif- 
ferent terms  of  the  statute,  "accept"  and 
"actually  receive,"  as  though  they  were 
in  effect  synonymous. 

1  8  B.  &  Aid.  321. 

2  3  B.  &  Aid.  680. 

3  3  B.  &  Aid.  321. 

*  Blackburn  on  Sales,  2d  ed.  29.  An 
American  writer,  to  whom  we  have  re- 
ferred in  a  preceding  note  (Baker  on 
Sales,  §  266),  says  of  Tempest  v.  Fitzger- 
ald, that  the  court  there  "decided  that 
there  had  been  no  acceptance  ;  "  the  italics 
being  his  own.  A  much  more  careful, 
and,  generally,  a  very  accurate  American 
writer,  more  correctly  says  :  "  In  the 
earlier  cases,  the  terms  'acceptance,'  're- 
ceipt,' and  'delivery'  were  often  used  as 
if  synonymous  and  interchangeable  ;  and 
this  makes  it  necessary,  at  the  present 
day,  to  notice  carefully  the  exact  sense  iu 
which  they  are  used  in  those  cases,  when 
they  may  be  cited  as  authority  upon  ques- 
tions concerning  'acceptance'  or  're- 
ceipt.'" And:  "The  term  'delivery,' 
which  does  not  occur  in  the  statute  at 
all,  has  been  often  loosely  used  to  denote 
acceptance  or  receipt  alone,  or  a  mixture 
of  the  two.  See,  for  illustration  of  this, 
Searle  v.  Keeves,  2  Esp.  598,  per  Evre, 
C.  J.  ;  Norman  v.  Phillips,  14  M.  &  W., 
727,  per  Alderson,    B.      In  Tempest  v. 


PART   VI.]  THE   ACCEPTANCE.  331 

evidence  clearly  showed  an  acceptance  of  the  horse  by  the  pur- 
chaser, within  the  meaning  of  the  statute,  but  not  the  actual 
receipt  which  is  also  there  required. 

In  Parker  v.  Palnier,^  where  there  had  been  a  sale  of  goods  by 
sample,  and  there  had  been  no  actual  transfer  of  the  goods,  the 
court  held  that  the  vendee  having  acted  on  the  contract,  and 
treated  the  goods  as  his  own,  becoming  a  party  to  their  sale  after 
he  became  aware  that  they  were  not  according  to  the  sample,  his 
taking  upon  himself  the  disposition  of  the  goods  was  equivalent 
to  an  acceptance.  Here,  "  acceptance  "  was  used  in  the  sense  of 
both  "  acceptance  "  and  "  actual  receipt "  as  these  terms  are  used 
in  the  statute,  the  case  itself  uot  being  one  on  the  application 
of  the  statute. 

A  parol  order  was  given  by  B.,  in  Hanson  v.  Armitage,^  for  two 
chests  of  tea,  to  A.,  a  merchant  in  London,  who  had  been  in  the 
habit  of  selling  goods  to  B.,  resident  in  the  country,  and  of  deliv- 
ering them  to  a  wharfinger  in  London,  to  be  forwarded  to  B.  by 
the  first  ship.  The  tea,  in  pursuance  of  this  order,  was  delivered 
to  and  "  accepted  by  "  the  wharfinger  to  be  forwarded  in  the  usual 
manner.  The  court  held  that  the  "  acceptance  "  not  being  by  the 
party  himself,  was  not  sufficient  to  take  the  case  out  of  the  statute. 
Here,  again,  "  acceptance "  is  used  in  a  kind  of  double  sense, 
as  neither  exclusively  signifying  acceptance  nor  receipt.  There 
would  seem  to  be  here,  clearly,  no  acceptance  by  the  vendee  with- 
in the  actual  meaning  of  the  word  "  accept "  in  the  statute  ;  there 
being  no  evidence  from  which  an  acceptance  could  be  implied.^ 

Fitzgerald,  3  B.  &  Aid.  680,  Holroyd,  J.,  ployed   the   word    "acceptance,"  of   less 

in  his  opinion  speaks  constantly  of  '  ac-  value  than  it  otherwise  would  have  been 

ceptance,'   although   in  reality   deciding,  had  they  been  more  accurate.    In  this  case 

and   intending  to   decide,    a   question  of  they  nominally  hold   that  the   "accept- 

'  receipt '  involving  the   custody  or  pos-  ance  "   of  goods  by  a  wharfinger  bought 

session  of  the  chattel  and  the  existence  of  by  a  verbal  order  was  uot  "  a  sufficient 

the  seller's  lien.     And  see  Wright  v.  Per-  acceptance  "  to  make  the  purchaser  liable 

cival,  8  L.  J.  Q.  B.  (n.  s. )  258."     Browne  within  the   17th  section  of   the  statute, 

on  Stat,  of  Fr.  §  316a,  and  note  1.     Ben-  They  say   "Those  words   require  an   ac 

jamin,  also,  correctly  states  the  ratio  deci-  ceptance   by  the   X)arty  himself,  and   we 

dendi  of  Tempest  v.  Fitzgerald,  that  the  are  of  opinion  that  it  will  not  be  right  to 

holding  in   it   was   that   "there  was  no  suffer  any  constructive  acceptance  to  sat- 

actual  receipt "  of  the  horse  by  the  pur-  isfy  its  provisions  in  the  absence  of  proof 

chaser.     Benj.   on  Sales,  §  185.     Fisher,  of  any  express  contract  in  writing."-    But 

however,    in   his  Digest  (6   Mews'    Fi.sh.  the  law  is  perfectly  clear  that  generally 

Dig.  818),  following  the  error  of  the  re-  where  a  constructive  or  symbolical  receipt 

porter,  says  that  the  case  holds  that  there  is  good  at  common  law,  such  a  receipt 

was  "  no  acceptance  of  the  horse."  meets  the  requirements  of   the   "actual 

1  4  B.  &  Aid.  387.  See  per  Best,  J.,  receipt "  of  the  statut(\  Wliat  in  their 
p.  394.  uncertain   mode  of  using  the  term    "  ac- 

2  5  B.  &  Aid.  r>57.  ceptance  "  they  mean  by  saying  there  can 
*  The  case  of  Hanson   v.  Armitage  is     be  no  "  constructive  acceptance,"  it  is  im- 

also  reported  in  1  1).  &  Ry.  123.  It  is,  possible  to  say.  It  is  equally  impossible 
because  of  the  uni.'ertain  manner  in  which  to  say  whetlier  in  Hanson  v.  Armitage, 
Abbott,  C.  J.,  and  other  judges  of  the  they  meant  that  the  receipt  by  the  wharf- 
Court  of  Queen's  Bench  at  that  time  em-  inger  did  not  amount  to  an  acceptance  by 


332 


COMMENTARIES   ON   SALES. 


[book   IV. 


Carter  v.  Toussaint  ^  is  another  case  where,  in  a  very  marked 
way,  the  terms  "  acceptance "  and  "  actual  receipt "  are  con- 
founded;  Hoh-oyd,  J.,  expressly  saying,  "The  facts  here  stated 
do  not  amount  to  an  acceptance  or  actual  receipt ; "  very  im- 
properly confounding  these  terms.  So,  the  reporter's  note  is 
that  there  had  been  "  no  acceptance."  The  "  acceptance,"  within 
the  meaning  of  the  statute,  is  perfectly  clear.  What  the  case 
really  holds  is,  that  there  had  been  no  actual  receipt  of  the  horse, 
which  was  the  subject  of  the  parol  sale.  This  is  all  that  is  meant 
even  by  Bayley,  J.,  when  he  says :  "  By  the  seventeenth  section  it 
is  provided,  that  in  the  case  of  a  sale  of  goods  above  the  value  of 
XIO,  the  buyer  must  accept,  and  actually  receive  part  of  the 
goods  so  sold.  There  can  he  no  acceptance  or  actual  receipt  hy  the 
buyer,  unless  there  be  a  change  of  possession  ;  and  unless  the  seller 
divest  himself  of  the  possessioyi  of  the  goods,  though  but  for  a  mo- 
ment, the  property  remains  in  him.  Here,  the  plaintiffs  had  a 
lien  on  the  horse,  and  were  not  compellable  to  part  with  possession 
till  the  price  was  paid." 

This  is  very  improperly  treating  the  terras  "  accept  and  actually 
receive,"  as  though  they  meant  no  more  than  "  receive  and 
actually  receive."  Though  such  language  is  unfortunate,  all  that 
the  case  holds  is,  that  there  had  been  no  actual  transmission  of 
the  possession  of  the  horse  from  the  vendor  to  the  vendee ,  and, 
therefore,  no  actual  receipt  by  the  vendee,  in  either  of  the  modes 
recognized  by  the  common  law,  —  manual,  constructive,  or  sym- 
bolical. But  aside  from  the  question  of  the  actual  receipt  —  re- 
ception —  of  the  horse,  there  is  no  question  in  the  case  of  its 
acceptance  at  all,  as  the  accepting  and  taking  to  it  as  the  subject 
of  the  contract.  The  whole  question  is  discussed  as  to  whether 
there  had  been  an  actual  delivery  of  the  horse  or  not ;  not  as  to 
whether  there  had  been  an  acceptance  of  the  horse  within  the 
meaning  of  the  statute,  apart  from  the  actual  receipt,  which  the 
statute  also  requires. 

The  facts  were,  that  the  plaintiffs,  who  were  farriers,  sold  to 
the  defendants  a  specific  race-horse,  by  a  verbal  contract,  for  £30. 
The  horse,  at  the  time  of  the  sale,  required  to  be  fired,  which  was 
done  with  the  approbation  of  the  defendant  and  in  his  presence ; 


the  purchaser,  or  did  not  amount  to  an 
actual  receipt  by  him.  The  case  is  usually 
improperly  cited,  to  show  that  there  may 
be  the  actual  receipt  by  a  wharfinger  or 
carrier  required  by  the  statute,  but  that 
such  parties  are  not  agents  to  accept. 
Benj.  on  Sales,  §  160.  And  see  Blackb. 
on  Sales,  2d  ed.  22  ;  Campb.  on  Sales, 
169.     But  the  case,  on  the  subject,  like 


those  others  by  the  same  judges,  is  au- 
thority for  little  more  than  that  iu  such 
cases  there  have  not  been  the  acceptance 
and  the  actual  receipt  required  by  the 
statute,  the  presumption  being  that  here 
by  "  no  acceptance  "  they  mean  no  actual 
receipt,  as  clearly  there  was  no  actual  re- 
ceipt bv  the  vendee. 
1  5  B.  &  Aid.  855. 


PART   VI.]  THE   ACCEPTANCE.  333 

and  it  was  agreed  that  the  horse  should  he  kept  by  the  plaintiffs 
for  twenty  days,  without  any  cliarge  being  made  for  it.  At  the 
expiration  of  the  twenty  days  the  horse  was,  by  the  defendant's 
directions,  taken  by  a  servant  of  the  plaintiffs  to  Kiinpton  Park, 
for  the  purpose  of  being  turned  out  to  grass  there.  It  was  then 
entered  in  the  name  of  one  of  the  plaintiffs,  which  was  also  done 
by  the  directions  of  the  defendant,  who  was  anxious  that  it  might 
not  be  known  that  he  kept  a  race-horse.  No  time  was  specified 
in  the  bargain  for  the  payment  of  the  price.  These  facts  very 
clearly  show  the  accepting,  recognising,  approving,  the  taking  to 
of  the  horse  as  the  specific  subject  of  the  contract,  apart  from  the 
further  "  actual  receipt "  that  is  required.  But  the  court,  not- 
withstanding their  unfortunate  confusion  of  terms,  in  effect,  held, 
distinguishing  the  case  from  Elmore  v.  Stone,^  that  there  had  been 
no  actual  receipt  (that  is,  no  receipt,  either  manual,  constructive, 
or  symbolical),  because  there  had  been  no  manual,  constructive, 
or  symbolical  act  of  delivery  of  the  horse,  which  still  remained  in 
the  plaintiffs'  own  possession,  in  their  own  name,  unpaid  for. 

There  may  be  an  accepting  of  the  subject  of  the  sale,  without 
the  actual  receipt  of  it.  But  clearly  there  can  be  no  actual  receipt 
of  it,  where  there  has  been  no  change  in  the  possession,  manual, 
symbolical,  or  constructive.  Hence,  as  to  the  actual  receipt  re- 
quired, it  was  correctly  said  by  Bayley,  J.  :  "  How  can  it  be  said 
that  the  horse  was  in  the  possession  of  the  defendant,  when  he  had 
no  right  to  compel  a  delivery  to  him  ?  For  he  could  not,  on  tender- 
ing the  keep,  maintain  trover  against  the  park-keeper,  because  the 
possession  had  not  passed  from  the  vendors  to  him."  Therefore, 
there  was  no  "  actual  receipt "  in  him.  So  Abbott,  C.  J. :  "  It  is 
quite  clear,  that  the  present  plaintiffs  kept  possession  of  the  horse 
as  owners  until  it  was  sent  to  Kimpton  Park.  If,  indeed,  it  had 
been  sent  there  and  entered  in  the  defendant's  name  by  his  direc- 
tions, I  should  have  thought  it  would  have  amounted  to  an  ac- 
ceptance [meaning  here  "  actual  receipt  "J  by  him.  But  here  it 
was  entered  in  the  plaintiffs'  name,  and  the  plaintiffs'  character 
of  owner  remained  unchanged  from  first  to  last,  and  they  could 
not  have  been  compelled  to  deliver  it  without  the  payment  of  the 
money .2    There  was  then  no  sufficient  acceptance  to  take  the  case 

1  1  Taiint.  458.  tract  within  the  statute.     If  on  tender  of 

2  As  there  had  been  no  actual  receipt  the  price  they  were  compellable  to  part 
under  the  statute,  an  action  for  the  non-  with  the  possession  of  the  goods,  then  the 
delivery  of  the  horse  could  not  have  been  title  would  have  been  in  tiie  vendee,  even 
sustained,  even  had  there  been  a  tender  thou^jh  the  possession  remained  in  the 
of  payment,  the  vendors,  where  there  had  vendor.  And  if  there  had  been  an 
been  no  actual  receipt  of  part  of  the  goods,  "actual  receipt"  by  the  vendee,  so  that 
having  the  right  at  their  election  to  refuse  the  property  in  the  horse  had  passed 
the  payment,  there  being  no  "  good  "  con-  under  the  statute  to  the  vendee,  the  actual 


334 


COMMENTARIES   ON    SALES. 


[book    IV. 


out  of  the  Statute  of  Frauds  ;  and  consequently  the  action  is  not 
maintainable."  Here,  palpably,  is  meant  that  there  had  been  no 
transmission  of  the  subject  of  the  sale  by  an  actual  receipt  by  the 
purchaser;  hence,  no  "  actual  receipt"  under  the  statute,  leaving 
actually  the  question  of  "  acceptance  "  undisposed  of.  But,  as  we 
see  later  in  this  Part,  a  purchase  of  specific  goods  is  itself  an 
acceptance  within  the  statute. 

In  Price  v.  Lea,^  the  defendant  ordered  a  cask  of  cream  of  tar- 
tar, and  offered  to  purchase  two  chests  of  lac  dye,  at  a  certain 
price.  The  traveller  said  the  price  proposed  was  below  his  limits, 
but  he  would  write  to  his  principals,  and  if  the  defendant  did  not 
receive  a  letter  in  one  or  two  days,  refusing  to  execute  the  Order, 
he  might  conclude  that  his  offer  was  accepted.  The  plaintiffs  did 
not  write  to  the  defendant,  but  sent  him  both  the  cream  of  tartar 
and  the  lac  dye.  The  defendant  received  the  former  and  refused 
the  latter.  In  an  action  for  goods  sold  and  delivered,  the  court 
held  that  as  there  was  not  one  entire  contract  for  both  the  articles ; 
the  "  acceptance "  of  one  was  not  the  acceptance  of  the  other. 
This  is  unquestionably  correct,  in  whatever  sense  they  used  the 
term  "  acceptance  ;  "  i.  e.,  that  the  acceptance  or  actual  receipt  of 
one  article  is  not  that  of  another,  unless  there  is  one  entire 
contract  for  both.^ 

A  very  slight  approach  was  made  in  Baldey  v.  Parker  ^  towards 
an  appreciation  of  the  "accepting"  of  the  statute,  apart  from  the 
"  actual  receipt "  also  there  required.  The  plaintiffs  were  linen- 
drapers,  and  the  defendant  came  to  their  shop  and  bargained  for 
various  articles.  A  separate  price  was  agreed  upon  for  each,  and 
no  one  article  was  of  the  value  of  <£10  ;  though  the  whole  of  them 
was  much  in  excess  of  that  sum.  Some  of  the  goods  were  meas- 
ured in  the  defendant's  presence  ;  some  he  marked  with  a  pencil ; 
others  he  assisted  in  cutting  from  a  larger  bulk.  He  then  desired 
an  account  of  the  whole  to  be  sent  to  his  house,  and  went  away. 
Subsequently,  when  the  goods  were  sent  to  his  house,  he  refused 
to  "  receive  "  them.  The  court  held  that  the  contract  for  the  dif- 
ferent articles  was  an  entire  contract,  within  the  statute,  but  that 
there  had  been  no  actual  receipt  of  part  of  the  goods.    Abbott,  C.  J., 


or  constructive  possession  of  the  horse 
being  in  the  vendee,  the  vendor's  lien 
would  have  been  gone,  as  in  Elmore  v. 
Stone,  1  Taunt.  458,  the  possession  of  the 
vendor  being  that  merely  of  a  custodian  or 
bailee,  —  his  possession  in  that  capacity- 
being  the  possession  of  the  owner,  the 
vendee.  There  is  a  good  deal  of  confu- 
sion in  the  text-books  and  cases  on  the 
question  of  the  vendor's  lien  in  cases  of 
actual  receipt  under  the  statute,  which  we 


shall  endeavor  to  remove  when   we  more 
immediately  consider  that  subject  infra. 

1  1  B.  &  C.  156. 

2  See  Hodgson  v.  LeBret,  1  Camp. 
233  ;  Rohde  v.  Thwaites,  6  B.  &  C.  388; 
Elliott  V.  Thomas,  3  M.  &  W.  170  ;  Scott 
V.  The  Eastern  Counties  Ry.  Co.,  12  M. 
&  W.  33  ;  Bigg  v.  Whisking,  14  C.  B. 
195  ;  Baldey  v.  Parker,  2  B.  &  C.  37  ; 
Thompson  v.  Maceroni,  3  B.  &  C.  1. 

3  2  B.  &  C.  37. 


PART   VI.]  THE   ACCEPTANCE.  335 

after  citing  the  statute,  referring  to  the  language  in  it,  said  :  "  It 
would  be  difficult  to  find  words  [i.  e.  than  those  in  the  statute] 
more  distinctly  denoting  an  actual  transfer  of  the  article  from  the 
seller,  and  an  actual  taking  possession  of  it  by  the  buyer."  And 
Bayley,  J. :  "  The  buyer  cannot  be  considered  to  have  actually 
received  the  goods  when  they  had  remained  from  the  first  to  the 
last  in  the  possession  of  the  seller."  And  Holroyd,  J. :  "  Upon  a 
sale  of  specific  goods  for  a  specific  price,  by  parting  with  the  pos- 
session the  seller  parts  with  his  lien."  And,  for  the  plaintiffs,  it 
was  claimed,  that  the  accepting  was  an  act  done  "  to  show  an  ap- 
proval of  the  contract."  But  throughout  the  judgments,  the  terms 
"  acceptance  "  and  "  accepting,"  are  used  as  though,  in  their  appli- 
cation to  the  statute,  they  were  synonymous  with  reception  and 
receiving ;i  Holroyd,  J.,  further  saying:  "The  statute  contem- 
plates such  a  parting  with  the  possession  ;  and,  therefore,  as  long 
as  the  seller  preserves  his  control  over  the  goods,  so  as  to  retain 
his  lien,  he  prevents  the  vendee  from  accepting  and  receiving 
them  [treating  these  words  as  synonymous]  as  his  own,  within 
the  meaning  of  the  statute."  Within  the  meaning  of  the  word 
"  accept,"  in  the  statute,  the  vendee  may  accept  the  goods  without 
the  vendor  parting  with  either  his  possession  or  his  lien  ;  and  it  is 
also  equally  clear  that,  under  the  statute,  the  vendee  may  accept 
and  actually  receive  a  part  of  the  goods  sold,  and  the  vendor  still 
retain  his  lien  on  the  undelivered  part,  —  as  he  may,  on  the  whole, 
where  there  has  been  a  part-payment  or  a  memorandum  in  writ- 
ing of  the  contract,  unaccompanied  by  a  transfer  of  the  posses- 
sion. We  consider  this,  however,  further  on.  In  Baldey  v. 
Parker,^  it  was  clear  that  however  good  the  accepting  of  the  goods 
was,  under  the  statute,  there  had  been  no  actual  receipt  of  them 
by  the  vendee.  And  this  is  really  what  the  case  holds,  although 
the  reporter's  note  states  that  it  also  holds  that  there  was  no  ac- 
ceptance of  any  part  of  the  goods.^ 

1  See  remarks  of  Blackburn,  J.,  on  this     tor  v.  Jones,  2  C.  &  P.  532,  it  was  held  by  . 
case  in  Cusick  v.   Robinson,    1   B.   &  S.      Best,  C.  J.,  that   a  transfer  in  the  dock- 
299,  at  p.  308,  stated  by  us  infra.  books  is   a   symbolical    delivery.      More 

2  2  B.  &  C.  37.  properly,  it  is  a  constructive  delivery ;  the 
8  In  Phillips  V.  Bistolli,  2  B.  &C.  511,     delivery  of  a  symbol,  such,  for  instance, 

and  Bartall  i'.  Burn.  3  B.  &  C.  423,  the  as  the  key  of   the  warehouse  where  the 

term    "actual  acceptance"  is  used  when  goods  are  kept,  being  a  5!/7?iioZ!'OT/ delivery, 

"actual  receipt"  is   clearly  meant.     So,  But  if  a    constructive  or  symbolical  de- 

in  Nicholle  v.  Plume,  1  C.  &  P.  272,  the  livery,  that,  of  course,  implies  a  construc- 

court  say  "  there  must  be  an  unequivocal  tive  or  symbolical   receipt.     So,  too,  as  to 

acceptance,"  meaning  an    "unequivocal"  the  acceptance  of  the  statute,  it  may  be 

receipt  ;    to   which   the    reporter  added  :  express  or  implied.       Virtually,  then,  it 

"The  court  won't  s\\o\w  a  constructive  ^.q.-  may    be    actual    or    constructive    (words 

ceptance  to  be  sufficient."     It  is  difficult  which,  in  this  connection,   are,  in  effect, 

tp  say  what  is  meant  by  this,  as  a  con-  interchangeable  with  "express"  or  "im- 

structive  receipt  is  unquestionably  good,  plied"),  as  well  as  regards  the  acceptance 

It  is  simply  an  error  of  the  reporter,  as  as  the  actual  receipt  of  the  statute, 
the  court  did  not  use  the  term.     In  Proc- 


336 


COMMENTARIES   ON   SALES. 


[book   IV. 


Although  many  of  these  cases  are  of  less  value  in  showing  what 
is  an  acceptance,  from  the  uncertain  way  in  which  the  judges  used 
the  terms,  accept,  acceptance,  accepting ;  yet,  independent  of  the 
actual  receipt,  it  would  seem  to  have  been  held  by  Best,  C.  J.,  in 
Proctor  V.  Jones,^  where  the  marking  by  the  vendor  of  casks  of 
wine  lying  in  the  docks,  with  the  initials  of  the  purchaser,  at  his 
request,  and  in  his  presence,  the  terms  of  payment  not  having 
been  settled  at  the  time,  and  consequently  the  contract  not  being 
complete,  is  not  an  acceptance  under  the  seventeenth  section  of  the 
statute.  But,  we  think,  had  these  acts,  including  the  subsequent 
agreement  as  to  the  terms  of  payment,  been  followed  by  an  actual 
receipt  of  the  goods,  there  would  have  been  both  the  acceptance 
and  actual  receipt  required  by  the  statute  ;  there  being,  in  fact,  no 
complete  contract  in  such  cases  under  the  statute,  until  both  of 
these  concur. 

A  verbal  sale  was  made  in  Rohde  v.  Thwaites,^  of  twenty  hogs- 
lieads  of  sugar  at  56s.  6d.  per  cwt. ;  the  sugar  at  the  time  being 
in  bulk.  The  sugar  was  to  be  paid  for  in  two  months  then  fol- 
lowing. Four  hogsheads  of  the  sugar  were  filled  up,  and  were 
accepted  and  received  by  the  purchaser.  Subsequently,  the  re- 
maining sixteen  hogsheads  were  separated  from  the  bulk,  and  the 
defendant,  being  required  to  take  them  away,  said  he  would  as 
soon  as  he  could.  The  court  held  that  this  was  an  appropriation 
of  the  sixteen  hogsheads,  made  by  the  vendor  and  assented  to  by 
the  vendee,  and  that  the  acceptance  and  actual  receipt  of  the  four 
hogsheads  took  the  contract  out  of  the  statute  with  respect  to  the 
whole.^ 

The  case  of  Smith  v.  Surman  *  would  be  a  valuable  case,  as  well 
on  the  question  of  acceptance  as  on  that  of  actual  receipt,  but  for 
the  confusion  existing  in  that  and  in  so  many  other  of  the  English 
cases  with  reference  to  these  two  terms  of  the  statute ;  the  two 
terms,  "  accept  "  and  "  actually  receive,"  being  treated,  as  we  have 
before  intimated,  as  though  they  were  synonymous,  or  were,  in 
effect, "  receive  "  and  "  actually  receive  ; "  making  of  the  language 
of  the  statute  what  seems  to  us  to  be  pure  nonsense. 

In  several  of  the  early  cases,  such  as  Chaplin  v.  Rogers,^ 
Elmore  v.  Stone,^  Astey  v.  Emery ,'  Blenkinsop  v.  Clayton,^  and 
Tempest  v.  Fitzgerald,^  the  question  which  arose  was  as  to  the 


1  2  C.  &  p.  532. 

2  6  B.  &  C.  388. 

^  But  where  a  party  to  whom  goods  to 
the  amount  of  £10  and  upwards  were  de- 
livered, subject  to  approval,  under  a  verbal 
order,  it  was  held  that  he  must  refuse  to 
accept  them  in  a  reasonable  time,  and  if 
he  do  not,  he  is  to  be  treated  as  having 


accepted    them.      Coleman   v.  Gibson,  1 
Moo.  &  Rob.  168. 

*  9  B.  &  C.  561. 
5  1  East,  192. 

'  1  Taunt.    458. 
'  6  M.  &  S.  262. 

*  7  Taunt.  597. 

»  3  B.  &  Aid.  680 


PART   VI.]  THE   ACCEPTANCE.  337 

actual  receipt.  "  In  all  these  cases,"  as  Blackburn  in  his  work  on 
Sales  ^  well  says,  with  reference  to  some  of  these  and  similar 
cases,  "  there  seems  to  have  been  ample  evidence  of  an  accep- 
tance of  the  goods ^  but  scanty  evidence  of  any  actual  receipt,  if  by 
that  is  to  be  understood  a  taking  of  possession." 

The  necessity,  therefore,  in  these  cases,  not  having  arisen  for 
the  consideration  of  the  meaning  of  the  words,  "  accept  and  act- 
ually receive,"  in  the  statute,  the  courts  seem  to  have  fallen  into 
the  careless  habit  —  apparently,  but  not  really,  following  the  pre- 
ceding cases  —  of  entirely  ignoring  the  word  "  accept,"  in  the 
statute,  or  of  treating  it  as  meaning  nothing  more  than  receive. 
Yet  as  far  back  as  Kent  v.  Huskinson  ^  (a.  d.  1802),  where  there 
had  been  an  actual  receipt  of  the  goods  purchased,  but  no  "  accept- 
ance "  of  them,  and  it  was  claimed  that  the  actual  receipt  of  the 
goods  by  the  vendee,  and  his  opening  the  bale  and  subjecting  it  to 
an  examination,  was  an  acceptance  of  the  goods,  the  contra  was 
expressly  held.  In  this  contention,  the  words  of  the  statute  were 
misquoted,  so  as  to  accord  with  very  many  of  the  more  recent 
English  decisions  on  the  subject,  —  "  except  the  buyer  shall  ac- 
cept part  of  the  goods  so  sold,  or  actually  receive  the  same."  In 
this  case,  there  having  been  no  previous  acceptance  of  the  goods, 
after  their  actual  receipt  and  examination  by  the  defendant,  he 
rejected  them  and  sent  them  back.  The  court  very  properly  held 
that  there  had  been  no  "  acceptance  "  of  the  goods ;  plainly  using 
the  term  in  the  sense  in  which  it  is  employed  in  the  statute. 
Thus,  Heath,  J.,  says :  "  According  to  the  words  of  the  statute, 
the  exception  does  not  apply,  unless  the  vendee  both  receive  and 
accept.  Now  that  acceptance  I  cannot  consider  to  be  any  other 
than  the  ultimate  acceptance,  and  such  as  completely  affirms  the 
contract."  And  Chambre,  J. :  "  Certainly,  there  was  no  accept- 
ance of  the  goods  by  the  defendant  unless  we  can  consider  a 
refusal  to  accept  as  amounting  to  an  acceptance."  And  yet,  in 
this  case,  there  was  no  question  whatever  as  to  the  "  actual  re- 
ceipt "  of  the  goods.  So,  if  "  accept  and  actually  receive  "  meant 
merely  "  receive  and  actually  receive,"  there  was  here  the  receipt 
and  actual  receipt,  —  the  receipt  in  this  case  being  neither  symbol- 
ical nor  constructive,  but  manual,  actual. 

On  principle,  no  less  than  as  a  deduction  from  the  well-decided 
case  of  Kent  v.  Huskinson,^  it  may  be  said :  Under  the  statute 
goods  may  be  received  by  the  purchaser ;  but  where  there  has 
been  no  previous  acceptance  of.  them  he  may  reject  them  ;  that  is, 
refuse  to  accept  them.     Where,  therefore,  there   is  this  right  of 

1  2d  ed.  29.  «  3  B.  &  P.  233. 

2  3  B.  &  P.  233,  stated  supra,  p.  321. 
VOL.  II.  22 


338  COMMENTARIES   ON   SALES.  [BOOK   IV. 

rejection,  even  though  there  have  been  an  actual  receipt,  on  the  due 
exercise  of  this  right  of  rejection  there  is  no  acceptance  within 
the  statute.  Where  there  has  been  the  acceptance,  as  well  as  the 
receipt,  there  is  no  longer  a  right  of  rejection.  And  where  there 
has  been  an  acceptance,  but  no  receipt,  as  without  the  concurrence 
of  both  acceptance  and  receipt  there  is  no  "  good  "  contract,  the 
inchoate  vendor  is  not  bound  to  deliver,  nor  the  inchoate  vendee 
bound  to  receive,  the  "  accepted  "  goods,  notwithstanding  their 
previous  acceptance.  The  right  to  reject  is  the  converse  of  the 
acceptance ;  the  refusal  to  deliver  or  receive  the  converse  of  the 
actual  receipt.  And  yet  there  are  scores  of  English  cases  which 
entirely  ignore  these  important  distinctions.  In  fact,  we  know 
of  no  branch  of  law,  even  including  partnership,  prior  to  the  deci- 
sion of  Cox  V.  Hickman,^  in  which  there  are  so  many  English 
decisions  so  utterly  unsound  as  there  are  on  questions  connected 
with  this  subject. 

Returning  to  Smith  v.  Surman^  (a.  d.  1829),  we  find  this  case 
tinctured  with  the  error  running  through  so  many  of  the  previous 
cases  we  have  examined.  In  this  case  A.,  being  the  owner  of  trees 
growing  on  his  land,  verbally  agreed  with  B.,  while  they  were  stand- 
ing, to  sell  him  the  timber  at  an  agreed  price  per  foot.  A.  gave  or- 
ders to  liave  the  trees  cut  down,  and  B.,  while  the  trees  were  in 
the  course  of  being  cut,  and  after  two  of  them  had  been  actually 
felled,  came  to  the  coppice,  and  A.  pointed  out  to  him  the  trees, 
which  were  numbered.  B.,  after  he  had  looked  at  them,  said  to 
one  of  the  by-standers  that  he  had  made  a  good  bargain,  and  told 
one  of  the  persons  who  was  cutting  tlicm  to  tell  the  other  men 
to  cross-cut  them  fair,  and  they  were  cut  accordingly.  After 
the  trees  had  been  measured  B.  met  the  person  who  had  meas- 
ured them,  and  asked  him  if  he  had  measured  the  timber  at  A.'s, 
and  receiving  an  answer  in  the  affirmative  B.  offered  to  sell  him 
the  butts  (which  he  alleged  he  had  bought  of  A.)  ;  but  this  not 
being  acceded  to,  the  defendant  asked  him  if  he  knew  any  person 
who  wanted  any  butts,  and  then  he  would  go  to  A.'s  and  convert 
the  tops  into  building  stuff.  B.  having  refused  to  take  away  the 
timber,  special  assumpsit  was  brought  against  him  for  refusing  to 
fetch  and  carry  away  the  timber,  or  to  pay  for  the  same,  with 
counts  for  goods  bargained  and  sold  and  goods  sold  and  deliv- 
ered. In  this  case,  there  having  been  a  sale  at  an  agreed  price 
of  specific,  ascertained  goods,  the  facts  here  showed  just  as 
complete  an  acceptance  of  the  goods,  as  the  very  subject  of  the 
contract,  as  in  the  different  cases  examined  by  us,  supra ;  ^  with 

1  8  H.  L.  Cas.  268.  8  See  ante,  324  et  sea. 

2  9  B.  &  C.  561. 


PART    VI.] 


THE   ACCEPTANCE. 


339 


reference  to  wliich,  as  we  have  seen,  one  of  the  very  highest 
authorities  on  the  subject  in  England  or  elsewhere  has  expressed 
the  opinion  that  the  evidence  in  tliem  of  such  acceptance  was 
amplc.^ 

The  question  really  in  the  case  was  whether  there  had  been 
an  actual  receipt  of  any  part  of  the  goods  sold.  And  as,  not- 
withstanding the  acceptance  of  the  specific  goods  as  the  express 
subject  of  the  contract,  there  was  no  delivery  of  the  goods  or  any 
part  of  them,  either  manual,  constructive,  or  symbolical,  and  no 
greater  dealing  with  the  goods  from  which  a  receipt  could  be 
implied  than  there  was  in  Blenkinsop  v.  Clayton,^  it  was  obvious 
that  there  was  no  actual  receipt  of  the  goods  or  any  part  thereof 
to  take  the  case  out  of  the  statute.  But,  again  confounding  the 
words  "  accept "  and  "  actual  receipt,"  as  though  "  accept "  was 
mere  surplusage,  the  contention  was  that  there  had  been  an  "  ac- 
tual acceptance,"  meaning  simply  an  actual  receipt  within  the 
exception  of  the  statute,  the  reporter  deducing  from  the  case 
"  that  there  had  been  no  part  acceptance  or  actual  receipt  of  the 
goods  to  satisfy  the  statute."  ^ 


1  Blackburn  on  Sales,  2d  ed.  29.  See 
Marshall  v.  Green,  1  C.  P.  Div.  35,  stated 
towards  the  close  of  the  next  Part,  which 
in  most  of  its  facts  was  a  very  similar 
case  to  that  of  Smith  v.  Sunnan,  9  B.  & 
C,  561  ;  but  it  difiered  essentially  from 
this  latter  case  in  the  respect  that  although 
in  both  there  was  a  sale  and  purchase  of 
specific,  ascertained  goods,  constituting  a 
clear  acceptance  of  the  subject  of  the  sale 
in  each  case,  yet  in  Marshall  v.  Green 
the  trees,  the  subject  of  tlie  sale  there,  as 
in  Smith  v.  Surman,  were  under  the  con- 
tract to  be  felled,  and  actually  were  felled, 
by  the  vendee,  constituting  an  actual  re- 
ceipt of  them,  which  was  wanting  in  the 
otherwise  similar  case  of  Smith  v.  Surman. 

2  7  Taunt.  597. 

^  In  the  judgment  of  Bayley,  J., 
although  the  terms  "  acceptance  or  actual 
receipt"  are  wrongly  used  as  convertible 
terms,  and  "acceptance"  and  "actual 
acceptance "  most  carelessly  and  im- 
properly used,  where  he  should  have  em- 
ployed receipt  or  actual  receipt,  yet  the 
■whole  gist  of  his  reasoning  is  that  there 
had  been  no  change  in  the  possession  ; 
that  is,  no  actual  receipt  by  the  vendee, 
such  as  was  implied  in  Chaplin  v.  Rogers, 
1  East,  194,  and  a-s  arose  constructively 
in  what  we  think,  notwithstanding  the 
doubts  cast  upon  it  in  some  of  the  cases, 
is  the  well-decideil  case  of  Elmore  v. 
Stone,  1  Taunt.  458,  stated,  supra,  p.  324. 
Bayley,  J.,  says  :  "  The  question  is 
whether    there    was   any    acceptance    or 


actual  receipt  [I]  of  part  of  the  property 
sold,  so  as  to  bring  the  case  within  the 
exception  in  the  17th  section  ;  and  1  think 
that  there  was  no  such  acceptance  or 
actual  receipt  [?].  In  all  the  cases  cited 
there  has  been  something  equivalent  to  an 
acceptance  [/].  In  Chaplin  v.  Rogers,  1 
East,  194,  the  vendee  had  sold  the  hay 
again,  and  the  jury  from  thence  drew  the 
conclusion  that  there  had  been  an  actual 
acceptance  [.'].  In  Elmore  v.  Stone,  1 
Taunt.  458,  the  horses  were  purchased  of 
a  horse-dealer  who  kept  a  livery  stable. 
The  buyer  directed  the  seller  to  keep  the 
horses  at  livery,  and  they  were  transfen-ed 
from  the  sale  to  the  livery  .stable.  The 
purchaser  became  liable  to  the  livery-stable 
keeper  for  the  keep,  which  could  not  have 
been  the  case  unless  the  horses  were  sup- 
posed to  have  gone  into  his  possession.  The 
direction  given  by  the  vendee  was  consid- 
ered equivalent  to  an  acceptance  or  actual 
receipt  [here  clearly  treating  these  terms 
improperly  as  convertible]  of  the  horses. 
The  vendor  was  converted  into  the  agent 
of  the  vendee,  for  the  keep  of  the  horses, 
and  thej'  might  be  considered  «-•>'  much  in 
the  possession  of  the  vendee  as  if  they  lucd 
been  in  his  own  stable.'"  All  this  should 
have  been  expressly  limited  to  the  ques- 
tion of  the  sufficiency  of  the  receipt  to 
meet  the  "actual  receipt"  required  by 
the  statute.  It  is  to  such  cases  as  this 
that  one  of  the  very  best  of  American 
law-writers  (Browne  on  Statute  of  Frauds, 
316  a)  refers  when  he  speaks  of  the  habit 


340 


COMMENTARIES   ON   SALES. 


[book   IV. 


Maberley  v.  Sheppard  ^  was  an  action  for  the  price  of  a  waggon 
as  for  goods  sold  and  delivered.  The  marginal  note  of  this  case 
is:  "Defendant  employed  plaintiff  to  construct  a  waggon,  and 
while  the  vehicle  was  in  the  plaintiff's  yard,  unfinished,  procured 
a  third  person  to  fix  on  the  iron  work  and  a  tilt.  Held,  that  this 
did  not  constitute  an  acceptance  under  the  Statute  of  Frauds, 
§  17."  All  of  these  cases  are  cited  in  the  English  digests  as 
though  they  really  held  that  there  had  been  no  acceptance.  The 
question  actually  decided  in  Maberley  v.  Sheppard  does  not  touch 
the  question  of  acceptance,  under  the  statute,  at  all.  What  it 
does  hold  is  that  no  actual  receipt  of  the  waggon  was  to  be 
implied  from  the  acts  done  by  the  defendant,  although  the  usual 
misuse  of  the  statutory  word  "  accept"  is  found  in  this  as  in  so 
many  of  the  other  English  cases.  Tindal,  C.  J.'s  whole  judgment 
shows  that  all  he  meant  was  that  there  had  been  no  delivery  and 
actual  receipt  of  the  waggon,  although  in  this,  as  in  so  many 
others  of  the  English  cases,  from  their  misconception  of  the  stat- 
ute, and  their  failure  to  give  any  effect  to  the  word  "  accept," 
except  so  far  as  the  meaning  of  that  word  is  covered  by  the  words 
"  actually  receive,"  it  is  not  singular  that  so  many  of  these  cases 
are  misstated  by  the  reporters  and  others.^ 


then  prevalent  in  the  English  cases  of  im- 
properly using  the  terms  acceptance,  re- 
ceipt, and  delivery,  as  though  they  were 
synonymous  and  interchangeable,  render- 
ing it  necessary  to  carefully  consider  the 
meaning  of  the  courts  in  so  using  these 
terms.  The  same  very  accurate  authority 
on  the  subject  correctly  says:  "To  con- 
stitute acceptance  there  must  be  some 
conduct  of  the  buyer  in  respect  to  the 
goods  as  aflbrds  evidence  that  he  has 
identified  and  recognized  them  as  the 
goods  which  were  to  be  his  by  virtue  of 
the  alleged  contract."  Broivne  on  Statute 
of  Frauds,  §  316  6.  That  is,  accepting  is 
the  approving,  the  recognizing,  the  affirma- 
tion as  an  act  of  the  mind  of  the  particu- 
lar subject  as  the  subject  of  the  contract 
actually  made  with  respect  to  it.  The 
same  careless  confounding  of  the  terms 
"accejit"  and  "actually  receive"  exists 
in  the  very  latest  of  the  English  cases. 

1  10  Bing.  99. 

2  Tindal,  C.  J.,  in  delivering  the  judg- 
ment of  the  court,  shows  that  the  waggon 
was  not  finished,  and  was  not  capable  of 
being  delivered,  and  that  the  acts  showing 
the  acting  as  owner  by  the  vendee,  result- 
ing from  an  assumed  delivery,  were  not 
similar  to  those  in  Chaplin  v.  Rogers,  1 
East,  192,  where  there  was  a  re-sale  by 
the  vendee  of  the  subject  of  the  contract. 
The  following  renders  it  clear  that  when 


he  uses  the  terms  "actual  acceptance," 
"actual  delivery,"  and  "actual  receiv- 
ing," Tindal,  C.  J.,  merely  meant  that 
there  had  been  no  "actual  receipt"  by 
the  defendant,  entirely  apart  from  the 
question  of  accepting,  under  the  statute, 
which  latter  point  he  does  not  touch  at 
all.  He  says:  "  There  are  decisions  which 
go  to  the  length  of  holding,  that  as  long 
as  the  vendor  retains  his  right  of  lien  over 
the  whole  of  the  commodity  sold,  there 
has  been  no  such  delivery  and  acceptance 
[tised  here  as  the  complement  of  delivery, 
receipt.  It  is,  of  coui-se,  well-established 
law  that  an  acceptance,  under  the  statute, 
even  of  the  whole,  does  not  desti-oy  the 
lien,  while  the  goods  remain  in  the  actual 
possession  of  the  vendor,  without  an  'ac- 
tual receipt,'  manual,  constructive,  or 
symbolical,  by  the  vendee]  as  the  statute 
intended."  And,  again,  that  "unless  there 
has  been  a  delivery  of  the  goods  by  the 
vendor,  with  an  intention  of  vesting  the 
right  of  possession  in  the  vendee,  and  an 
actual  acce])tance  by  the  latter,  with  an 
intention  of  taking  possession  as  owner 
[here  again  simply  meaning  that  there 
must  be  an  actual  delivery  and  receipt], 
the  statute  is  not  satisfied  (see  Baldev  v. 
Parker,  2  B.  k  C.  44,  and  Phillips  v.  Bis- 
tolli,  2  B.  &  0.  511);  and,  undoubtedly, 
the  present  case  cannot  be  held  to  fall 
within  the  compass  of  either  of  those  de- 


PART    VI.]  THE   ACCEPTANCE.  341 

Acebal  v.  Levy  ^  was  a  contract  for  1000  barrels  of  nuts,  where 
there  was  no  sufficient  note  of  the  contract  in  writing.  It  was 
held  that  there  having  been  no  acceptance  by  the  vendee  abroad, 
of  the  nuts,  so  as  to  take  them,  as  the  subject  of  the  contract,  tlie 
delivery  of  them  abroad,  on  board  a  ship  chartered  by  him,  was 
not  an  acceptance  of  them  that  would  satisfy  the  statute.  Here, 
as  there  was  apparently  a  delivery  to  the  vendee,  on  his  own  ship, 
had  there  been  such  an  acceptance  of  the  very  subject  of  the  con- 
tract by  the  vendee  as  would  have  precluded  him  from  taking  any 
objection  to  the  quality  of  the  goods  sold,  the  statute  would  seem 
to  have  been  satisfied. 

In  Elliott  V.  Pybus,2  there  was  a  part-payment  which  was  suffi- 
cient to  take  the  case  out  of  the  statute  ;  but  the  case  is  still  ap- 
plicable both  as  to  the  acceptance  and  actual  receipt.  The  action 
was  assumpsit  for  goods  bargained  and  sold.  The  defendant  or- 
dered the  plaintiff  to  make  a  ruling  machine,  according  to  a  plan 
of  defendant,  and  deposited  £4  towards  the  payment.  The  de- 
fendant from  time  to  time  superintended  the  construction  of  the 
machine  ;  and  before  it  was  finished,  an  alteration  was  made  in 
its  construction  at  his  request.  When  it  was  complete,  he  saw  it 
and  paid  X2  more  on  account,  but  omitted  to  come  to  a  final  set- 
tlement. The  plaintiff,  thereu])on,  sent  to  him  to  fetch  the  machine 
away  and  pay  the  balance  of  the  price.  The  defendant  admitted 
that  the  machine  was  made  according  to  his  order,  but  requested 
the  plaintiff  to  send  it  home  before  it  was  paid  for.  Here  there 
was  the  acceptance  of  the  machine  by  the  defendant,  as  the  sub- 
ject of  the  contract.  And  the  court  held  that,  according  to  the 
rule  of  Rohde  v.  Thwaites,^  and  Atkinson  v.  Bell,^  there  had  been 
such  an  appropriation  of  the  machine  by  the  vendor,  assented  to 
by  the  vendee,  as  would  pass  the  property  to  the  latter,  which  a 
jury  or  a  court  having  cognizance  of  the  facts  would  be  warranted 
in  finding. 

An  action  was  brought  in  Baines  v.  Jevons,^  for  the  price  of  an 

cisions  ;    for  the  plaintiff  retained  his  lien  actual   delivery   and   an   actual   receiving 
upon  the  waggon,  and  there  was  nothing  {sic)  of  part  or  the  whole  of  the  goods 
in  the  facts  that  denoted  any  intention  sold.       Upon   this   ground    [entirely    dis- 
either  to  deliver  or  accept.     [Here  again  pensingwith  the  consideration  of  tlie  ac- 
meaning    the    correlative   of    deliver,    re-  ceptance  under  the  statute,  also  recjuired] 
ceive].      The  circumstances  of  this  case  we   hold  that,    in    the  present  case,   the 
certainly  leave  it  open  to  doubt  whether  requisites  of  the  statute  have   not   been 
the   statute   has   been    complied   with   or  complied  with,  and  that  the  rule  for  set- 
not  ;    but  we  think  it  is  the  duty  of  the  ting  aside  the  nonsuit  and  entering  a  ver- 
plaintitf  to  free  the  case  from  all  doubt,  diet  for  plaintiff  must  be  discharged." 
and  where  any  remains,  that  it  is  safer  to  ^  10  Bing.  376. 
adhere  to  the  plain,  intelligible  words  of  ^  \q  Bing.  512. 
the   statute,    which    point    as   clearly   as  3  g  p,.  &  c.  388,  stated  supra,  336. 
words    can    [To    what?  —  an    acceptance  *  8  B.  &  C.  277. 
and  an  actual  receipt  ?     No  ;   but]  to  an  &  7  C.  &  P.  288. 


342 


COMMENTARIES   ON   SALES. 


[book  IV. 


eno-ine,  as  for  goods  sold  and  delivered.  In  the  statement  of  the 
case,  and  in  tlie  summing  up  by  the  judge  (Alderson,  B.),  the  ques- 
tion is  treated  simply  as  whether  there  was  an  "  acceptance  "  of 
the  engine ;  no  reference  being  made  to  the  question  of  the  actual 
receipt  at  all ;  although,  in  the  pleadings,  the  language  of  the 
statute  is  properly  and  strictly  followed.  All  of  these  cases  are 
improperly  treated  by  Benjamin,  as  questions  of  "  constructive 
acceptance."  ^  In  the  case  it  appeared  that  the  defendant  had 
bought  of  the  plaintiff  a  fire-engine,  at  the  price  of  X25,  there 
being  no  note  in  writing  of  the  contract,  nor  any  part  payment. 
To  sustain  the  replication  to  the  plea,  '•  that  the  defendant  did 
accept,  and  actually  received  the  said  goods,"  a  witness  was 
called  who  stated  that  the  defendant  took  him  into  a  yard  where 
the  fire-engine  stood,  to  show  it  to  him  ;  and  that,  on  his  asking 
the  defendant  what  he  meant  to  do  with  it,  as  no  one  would  want 
it,  the  defendant  replied  that  the  parish  of  Dudley  would  want  an 
engine,  as  well  as  two  other  persons  whom  he  named.  It  was  also 
proved  that,  on  another  person  asking  the  defendant  what  he 
meant  to  do  with  it,  he  replied,  "  I  know  what  I  am  going  to  do 
with  it ;"  and  to  another  (a  Mr.  Neal),  who  asked  if  the  plaintiff 
would  sell  the  engine,  the  defendant  said  :  "  Never  mind  that,  I 
have  a  concern  in  that  engine."  Here  was  the  clearest  possible 
evidence  of  acceptq^ice  ;  but  extremely  slight  and  doubtful  evi- 
dence—  or,  in  fact,  no  evidence  whatever — of  the  actual  receipt 
required  by  the  statute.  The  evidence  admitting  no  question  as 
to  the  acceptance  of  the  engine,  the  actual  effect  of  Alderson,  B.'s 
summing  up,^  was,  that  if  there  had  been  such  a  dealing  with  the 
fire-engine,  by  the  defendant,  as  convinced  the  jury  that  he  had 
treated  it  as  his  own,  an  actual  receipt  would  be  implied.^  It  is 
most  unfortunate  that,  in  so  many  of  these  cases,  there  is  such 
inextricable  confusion  in  terms,  leading  to  the  greatest  doubt  as  to 
what  is  meant,  and  leaving  the  cases  of  relatively  little  value.  In 
this   case,  as  the  action  was  for   goods  sold  and  delivered,  the 


1  Benj.  on  Sales,  §§  144,  145  et  seq. 

2  The  language  of  Alderson,  B.,  was  : 
"The  question  here  is,  whether  the  de- 
fendant has  accepted  this  fire-engine.  We 
find  that  the  defendant  takes  a  person  to 
look  at  it,  and  says  who  is  likely  to  want 
it.  You  will  say  whether  that  is  not  a 
dealing  with  it  as  his  own  ;  and  when 
another  witness  asks  him  what  he  is  going 
to  do  with  it,  the  defendant  does  not  say 
that  it  is  not  his  ;  but  he  replies,  '  I  know 
what  I  am  going  to  do  with  it.'  And  in 
his  observations  to  Mr.  Neal,  he  speaks  as 
if  it  were  his  own.  You  will  consider 
whether  this  convinces  you  that  the  de- 
fendant treated    this   fire-engine    as    his 


own,  and  dealt  with  it  as  such  ;  for,  if  so, 
the  plaintiff  is  entitled  to  a  verdict." 

3  On  this  point  the  case  goes  much 
farther  than  such  cases  as  Tempest  v. 
Fitzgerald,  3  H.  &  Aid.  680;  Carter  v. 
Toussaint,  5  B.  &  Aid.  855 ;  Kent  v. 
Huskinson,  3  R.  &  P.  233  ;  or  even  than 
Blenkinsop  v.  Clayton,  7  Taunt.  597,  and 
Chaplin  v.  Eogers",  1  East,  192,  stated  by 
us,  supra,  p.  321  et  seq.  We  examine  the 
question  of  constructive  receipts  more  par- 
ticularly in  the  next  succeeding  Part.  In 
Baines  v.  Jevons,  7  C.  &  P.  288,  while 
there  was  evidence  of  acceptance,  the  ac- 
tual receipt  was  entirely  wanting. 


PART    VI.]  THE    ACCEPTANCE.  343 

very  essence  of  the  action  involved  the  necessity  of  showing  a 
delivery  and  "'  actual  receipt ; "  of  which  there  was  no  evidence 
whatever. 

We  find,  at  length,  at  least  indications  of  a  kind  of  distinction 
being  taken,  by  Parke,  B.,  in  Johnson  v.  Dodgson,^  between  the 
acceptance  and  actual  receipt  required  by  the  statute  to  make  the 
contract  "  good,"  which  was  alluded  to  by  Heath,  J.  (a.  d.  1802), 
in  Kent  v.  Huskinson,^  and  which  has  been  lost  sight  of  in  so 
many  of  the  English  cases  since  that  time.  In  Johnson  v.  Dodg- 
son,  where  it  seems  to  have  been  held  that  there  had  been  no 
acceptance  by  the  purchaser,  under  a  verbal  contract,  of  any  part 
of  the  goods  sold,  it  was  claimed  that  the  subsequent  delivery  for 
the  vendee,  to  a  carrier,  of  bulk  samples,  which  were  a  part  of  the 
goods  purchased,  was  an  "  acceptance"  by  the  vendee.  Counsel 
said  :  "  But  there  is  a  further  question,  whether  there  has  not  been 
an  acceptance  of  the  goods  by  the  defendant.  If  the  bulk  answered 
the  samples  (as  the  jury  have  found),  the  delivery  of  the  bulk 
samples  to  the  carrier  would  be  a  complete  delivery  of  the  hops." 
Parke,  B.  :  "  How  can  you  say  there  was  an  acceptance  when  the 
defendant  expressly  says  he  will  not  accept  ?  The  delivery  to  the 
carrier  may  he  a  delivery  to  the  defendant,  but  the  acceptance  of 
the  carrier  is  not  an  acceptance  hy  him.  The  old  cases  in  which 
it  has  been  said  that  a  receipt  by  a  carrier  was  an  acceptance  to 
satisfy  the  statute,  were  overruled  by  Howe  v.  Palmer,"  and  Han- 
son V.  Armitage."  *  And  Lord  Abinger,  C.  B. :  "  If,  to  take  the 
strongest  case,  the  purchaser  sent  his  own  servant  for  the  goods, 
and  when  they  were  brought,  sent  them  back,  as  not  ansivering 
the  contract,  he  could  not  be  said  to  accept  them."  But,  in  this 
case,  if  there  had  been  the  prior  acceptance  under  the  statute,  by 
the  master,  the  receipt  by  the  servant  would  have  been  a  receipt 
by  the  master  to  have  answered  the  requirements  of  the  "  actual 
receipt "  of  the  statute.^  And  what  an  acceptance  under  the  stat- 
ute is,  was  not  clearly  considered  in  this  case. 

^  2  M.  &  W.  653,  656.  amounting  to  an  acceptance  of  the  goods 

2  3  B.  &  P.  233,  235.  "According  to  within  the  meaning  ol  the  statute  ;  but 
the  words  of  the  statute,  the  exception  the  court  held  that  this  was  no  delivery — 
does  not  apply  trntes  the  vendee  both  re-  the  complement  of  receipt  —  to  the  de- 
ceive and  accept."  feudant.     Bay  ley,  B.,  said:    "From  first 

3  2  B.  &  Aid.  321.  to  last  those  goods  remained  in  the  pos- 

4  5  B.  &  Aid.  559.  session  of  the  plaintifl'.      It  is  an  entirely 

5  So,  in  the  preceding  case  of  Boulter  different  question  whether  doing  an  act 
V.  Amott,  1  Cr.  &  M.  333,  which  was  an  like  marking  or  ])acking  for  the  vendee  in 
action  for  goods  sold  and  delivered,  the  his  presence  may  not  operate  as  an  accept- 
goods  were  packed  in  the  defendant's  ance  [?  receipt]  by  him  under  the  statute 
boxes  by  the  plaintiff'  for  the  defendant,  of  frauds.  The  question  here  is,  whether 
and  in  his  presence,  who  requested  the  there  was  a  delivery  to  the  vendee.  1  do 
plaintiff  to  keep  them  for  him  until  not  agree  that  the  boxes  are  to  be  con- 
he  called  for  them,  this  unquestionably  sidered  as  having  been  the  warehouse  of 


34-4  COMMENTARIES   ON   SALES.  [BOOK   IV. 

The  case  of  Johnson  v.  Dodgson  ^  was  really  decided  on  the 
o-round  that  there  was  a  sufficient  memorandum  in  writing  to  take 
the  case  out  of  the  statute.  But  as  it  was  a  purchase  of  goods  by 
sample,  the  jury  finding  that  the  bulk  corresponded  with  the  sam- 
ple, and  the  action  for  the  price  being  sustained,  it  seems  clear 
that  there  was  sufficient  evidence  of  the  acceptance  to  satisfy  the 
statute,  outside  of  the  question  of  the  actual  receipt,  which,  under 
that  clause  of  the  statute,  is  also  required  to  make  the  contract  be 
deemed  good.  We  find  the  case  also  reported  in  1  Jur.  312,  739. 
It  does  not  clearly  appear  from  either  of  the  reports,  but,  as  the 
action  was  for  goods  sold  and  delivered,  and  was  sustained,  and 
as  the  jury  found  that  the  "  bulk  "  of  the  goods  answered  the  sam- 
ples, it  seems  as  though  the  whole  of  the  goods  purchased  were 
delivered  to  the  defendant's  agent,  and  that,  therefore,  there  were 
both  the  acceptance  and  actual  receipt  of  the  goods  to  satisfy  the 
statute.  However,  from  the  uncertain  manner  in  which  the  facts 
of  the  case  appear  in  the  reports,  and  from  the  fact  that  the  case 
went  off  on  another  point,  it  is  of  little  value  on  the  questions  of 
the  acceptance  and  actual  receipt  of  the  statute. 

In  Elliott  V.  Thomas,^  there  was  a  sale  under  a  verbal  order  of 
two  kinds  of  steel ;  common  steel  and  cast  steel.  There  was  an 
actual  receipt  of  the  ivkole  ;  but  it  was  claimed  that,  although  there 
was  an  acceptance  of  the  common  steel,  although  both  were  the 
subject  of  one  entire  order,  this  was  not  an  acceptance  within  the 
meaning  of  the  statute  of  the  cast  steel.  In  this  case  the  clear 
discrimination  was  made  between  the  actual  receipt  and  the 
accepting  of  the  statute.  Counsel  ^  said  :  •  Even  supposing  goods 
ordered  by  parol  to  be  furnished  pursuant  to  order,  the  buyer  is  not 
bound  to  take  them,  the  contract  being,  per  se,  inoperative  by  the 
Statute  of  Frauds.  On  the  other  hand,  whether  they  answer  the 
order  or  not,  if  the  buyer  agree  to  take  to  the  goods  actually  sup- 
plied, he  is  precluded  from  saying  that  there  was  no  acceptance. 
The  first  question,  therefore,  is,  whether  the  acceptance  of  the 
common  steel  operated  as  an  acceptance  of  the  cast  steel  also.  It 
is  submitted  that  the  part-acceptance  meant  by  the  statute,  is  the 
part-acceptance  of  one  entire  thing  of  the  same  cliaracter.     So 

the  defendant;  but  I  think  that  the  plain-  send  for  them  ;  but  A.  declared  that  they 

titf  was  entitled  to  consider  the  goods  in  should  not  be  carried  away  until  they  were 

his  own  possession."    And  in  Goodall  v.  paid  for  ;  and  it  was  held,  in  an  action  for 

Skelton,  2   H.  Bl.  316,  there  was  a  clear  goods  sold  and  delivered,  that  there  was 

acceptanceof  the  goods,  jbut  no  delivery  or  no   delivery.      In   these   cases  there  was 

receipt  of  thetn.     There  A.  agreed  to  sell  the  clear  acceptance,  but  not  the  actual 

goods  to  B.,  who  so  far  accepted  the  goods  receipt. 

that  he  paid  earnest  for  thera  to  bind  the  ^  2  M.  &  W.  653. 

bargain  ;    and  the  goods  were  packed   in  23  ]^i_  ^  ^^y^  jjq_ 

cloths  furnished  by  B.,  and  deposited  in  a  3  Cresswell,  subsequently  Cresswell,  J. 

building  belonging  to  A.  until  B.  should 


PART    VI.] 


THE   ACCEPTANCE. 


345 


that  the  taking  to  one  part  is  necessarily  a  taking  to  the  rest.  A 
deliverij  of  part  never  amounts  to  a  delivery  of  the  whole,  unless 
the  parties  appear  to  have  so  intended  it.  It  cannot  be  said  there 
was  an  acceptance  of  the  whole.  The  court  held  that  there  was 
one  entire  contract  for  both  kinds  of  the  steel,  and  that  the 
"  acceptance  "  of  the  common  steel  (there  having  been  an  actual 
receipt  of  both  kinds)  was  sufficient  to  take  the  case  out  of  the 
statute  as  to  the  cast  steel  also. 

So,  in  Jordan  v.  Norton,^  which  was  an  action  for  goods  sold 
and  delivered.  There  there  was  a  receipt  by  the  defendant  of 
the  subject  of  the  sale  ;  but  as  there  was  no  acceptance,  it  was 
held  that  the  action  would  not  lie.  Had  there  been  an  acceptance 
of  the  subject  of  the  sale,  its  receipt  and  retention  would  have 
been  sufficient  to  have  sustained  the  action.^ 

Wright  V.  Percival  ^  was  an  action  on  a  special  contract  for 
"  not  accepting "  *  a  carriage,  with  a  count  for  goods  sold  and 


1  4  M.  &  W.  155. 

2  In  this  case  there  was  no  acceptance, 
because  although  the  subject  of  the  sale 
was  agreed  on,  the  minds  of  the  parties 
had  not  met  on  the  terms  of  the  sale,  and 
hence  there  was  no  acceptance  of  any  part 
of  the  goods  sold,  as  there  was,  in  fact, 
neither  sale  nor  acceptance.  And  see  Bill 
V.  Bament,  9  il.  &  \V.  36  ;  Knight  v. 
Mann,  118  Mass.  143,  145;  Marsh  v. 
Hyde,  3  Gray,  331. 

3  8  L.  J.  k  s.  Q.  B.  258. 

*  Here,  "not  accepting"  means  as 
much  not  receiving  as  not  accepting,  and 
it  is  because  the  word  "accept"  has  two 
very  different  meanings  —  one  the  equiv- 
alent of  receipt,  and  tiie  other  rather  that 
of  assent — that  so  much  confusion  has 
arisen  in  connection  with  the  subject,  as 
we  find  in  the  text-books  and  cases.  As 
we  have  shown,  supra,  the  word  in  the 
statute  is  used  in  a  sense  different  from 
that  of  receipt,  and  rather  in  the  sense  of 
assent  or  approbation.  In  Abbott's  Law 
Diet.  7,  it  is  thus  defined  :  "Accept.  To 
receive  with  approval  or  satisfaction  ;  to 
receive  with  intent  to  retain.  The  fact 
of  acceptance,  that  is,  assent,  is  impor- 
tant to  he  ascertained  in  determining  the 
validity  and  obligation  of  various  con- 
tracts. Thus,  one  to  whom  a  contract  is 
proposed,  and  who  agrees  to  its  terms,  is 
said  to  acce[>t  the  proposal  ;  though,  for 
this  idea,  assent  is  a  more  strictly  accu- 
rate term."  And  1  Burr.  Law  Diet.  tit. 
"Acceptance:"  "A  receiving  with  ap- 
probation or  satisfaction ;  or,  in  the  lan- 
guage of  the  old  books,  'a  taking  in  good 
part.'  Termes  de  la  ley.  Approval  of, 
assent  to,  or  acquiescence  in  a  thing  re- 
ceived, an  agreement  to  keep  a  thing  re- 


ceived." "With  respect  to  the  buyer, 
there  must  be  an  acceptance,  and  such  as 
completely  aflirms  the  contract,  though 
this  acceptance  need  not  be  in  express 
terms,  but  may  arise  constructively  out  of 
the  acts  of  the  vendee."  Kob.  on  Frauds, 
178.  And  Taylor  on  Evidence  (7th  Eng. 
ed.  §  1045),  though  not,  as  we  shall  see  in  a 
later  part  of  this  work,  altogether  accurate 
with  respect  to  the  effect  of  the  accepting 
acid  actual  receipt  of  the  statute  upon  either 
the  necessary  extinction,  in  all  cases,  of  the 
vendor's  lien,  or  the  preclusion  of  the  pur- 
chaser to  object  to  the  quantity  or  quality 
of  the  goods,  is  entirely  accurate  in  the 
distinction  which  he  makes  between  the 
acceptance  and  actual  receipt,  where  he 
says  ;  "The  acceptance  and  actual  receipt 
mentioned  by  the  statute  have  given  rise 
to  much  litigation  ;  but,  without  entering 
into  any  lengthened  discussion  of  the  nu- 
merous decisions  which  bear  on  this  point, 
it  may  sufiice  to  observe,  that  each  of  the 
two  terms  has  a  distinct  and  separate 
meaning;  that  a  compliance  with  both 
requisites  is  necessary  to  satisfy  the  stat- 
ute ;  that  an  acceptance  and  receipt  of 
part  of  the  goods  will  be  as  operative  as 
an  acceptance  and  receipt  of  the  whole  ; 
that  in  cases  relating  to  the  purchase 
of  specific  goods  the  acceptance  may 
precede  the  receipt,  as  well  as  follow  it 
or  be  contemporaneous  with  it ;  that  an 
agent  authorized  to  receive  goods  is  not 
consequently  authorized  to  accept  them  ; 
that  the  receiy)t,  which  implies  delivery, 
must  be  such  as  will  jtrcclude  the  vendor 
from  retaining  any  lien  on  the  goods,  and 
that  the  acceptance  and  receipt  together 
must  be  .such  as  will  preclude  the  pur- 
chaser  from  objecting   to   their  quantity 


346  COMMENTARIES   ON   SALES.  [bOOK   IV. 

delivered.  The  facts  were  that  the  defendant  having  agreed  to 
buy  a  carnage  of  the  plaintiffs,  came,  after  it  was  finished,  to  the 
plaintiffs'  manufactory,  bringing  with  her  a  cover  for  the  hind 
seat  and  a  set  of  traces,  which  the  carriage  had  been  previously 
made  to  fit.  One  of  the  plaintiffs  said  the  carriage  was  complete. 
The  defendant  and  her  sisters  got  into  it,  and  said  it  was  a  very 
nice  one.  They  then  desired  the  plaintiffs  to  order  a  pair  of  post- 
horses  to  take  the  carriage  home,  stating  that  they  would  call  at 
half-past  four.  They  added  that  they  brought  a  cover  to-  put 
over  the  hind  seat,  and  directed  that  it  should  be  put  over  twice 
doubled.  The  cover  was  put  over  the  hind  seat  in  their  presence, 
and  agreeably  to  their  directions.  The  afternoon  proved  wet, 
and  at  live  o'clock  the  defendant  and  her  sisters  came  to  the 
plaintiffs,  and  stated  their  intention  not  to  take  the  carriage  home 
that  night  owing  to  the  badness  of  the  weather.  The  defendant 
afterwards  refused  to  pay  the  price  demanded  by  the  plaintiffs, 
and  did  not  take  the  carriage  away.  The  jury  found  for  the 
plaintiffs  on  the  count  for  goods  sold  and  delivered.  The  court 
held  that  there  had  been  an  acceptance  and  actual  receipt  of  the 
carriage  by  the  defendant  to  satisfy  the  statute,  and  sustained 
the  verdict.  Lord  Denman,  C.  J.,  said,  "  The  verdict  was  right 
on  the  question  whether  an  action  for  goods  sold  and  delivered 
could  be  maintained,  for  there  was  a  complete  delivery  and  ac- 
ceptance. Where  a  buyer  has  the  full  control  over  the  goods  in 
question,  and  the  power  of  taking  them  away,  the  jury  are  fully 
justified  in  finding  a  complete  delivery."  So,  Littledale,  J. :  "  The 
question  in  this  case  is  whether  a  delivery  was  actually  made.  I 
think  it  was,  and  that  the  defendant  accepted  the  carriage  by 
putting  on  the  cover.  Her  intention,  moreover,  was  to  take  it 
away,  and  she  was  prevented  from  doing  so  only  by  the  unfavor- 
able state  of  the  weather.     She  exercised  an  act   of  ownership, 

or  quality.     Indeed,  the  broad  question,  So,  in  an  admirable  case  on  the  subject  in 

which  must  be  submitted  as  one  of  fact  to  Michigan,  Hewes  v.  Jordan,  39  Md.  472, 

the  jury,   is   whether   the   circumstances  which  we  state  fully,  infra,  Alvey,  J.,  in 

prove  a  delivery  by  the  vendor,  and  an  ac-  delivering  the  judgment,  said  :  "The  act 

ceptance  and  actual  receipt  by  the  vendee,  of  acceptance  is  not  confined  to  any  par- 

iuteuded  by  both  parties  to  have  the  effect  ticular  order  of  time  in  reference  to  the 

of  transferring  the  right  of  possession  from  actual  receipt  of  the  goods.     On  the  con- 

the  one  to  the  other.     The  mere  marking  trary,  acceptance  may  precede,  as  in  cases 

of  goods,  therefore,  by  the  vendee  in  the  where   the   vendee   has   inspected   find  ap- 

vendor's  shop,  where  they  are  to  be  paid  proved  the  specific  goods  purchased,  as  well 

for  by  ready  money,  will  not  suffice,  as  as   be   contemporaneous   with,    or   subse- 

this  act,  though  it  may  constitute  a  valid  (luent  to,  the  actual  receipt  of  the  goods." 

acceptance,  is  not  such  a  receipt  by  the  The  question  in  connection  with  the  law 

vendee  as  will  deprive  the  vendor,  even  of  sales  is  so  im]ioi-tant,  and  the  cases  so 

when  he  assents  to  it,  of  his  right  of  lien."  numerous  where  the  acceptance  and  actual 

So,  Camp,  on  Sales,  168  :   "Both  accept-  receipt  are  improperly  treated  as  synony- 

ance  and  actual  receipt  must  exist  in  order  mous,   that  we  are  anxious  to  make  the 

to   satisfy  the  statute,  and   the  order  of  matter  perfectly  clear.     Hence  our  dwell- 

time  in  which  they  occur  is  indiflerent."  ing  so  fully  upon  it. 


PART   VI.]  THE   ACCEPTANCE.  347 

and  it  was  for  the  jury  to  say  whether  there  was  a  delivery  or 
not."  And  Williams,  J. :  "  Cases  of  this  kind  depend  on  their 
own  peculiar  circumstances.  Here,  the  facts  of  the  case  show 
that  the  plaintiffs  gave  and  the  defendant  received  iDossession  of 
the  carriaye,  although,  on  account  of  the  unfavorable  weather, 
the  latter  did  not  take  it  away  at  the  time.  ...  In  the  present 
case  there  ivas  a  complete  delivery.^' 

It  will  be  noticed,  that,  in  this  case,  while  there  was  a  special 
count  for  not  accepting  the  carriage,  the  jury  found  not  on  that, 
but  on  the  common  count  for  goods  sold  and  delivered.  And 
their  verdict  was  sustained.  Had  they  found  on  the  special  count 
in  favor  of  the  plaintiff,  their  verdict  could  not  have  been  sus- 
tained, for  the  court  expressly  held  that  the  carriage  had  been 
accepted  and  actually  delivered  and  actually  received  ;  the  trans- 
fer of  the  "  possession  of  the  carriage,"  as  well  as  the  property, 
being  thereby  fully  made  to  the  defendant,  so  that  an  action 
which  would  only  lie  where  there  had  been  an  actual  delivery  and 
receipt  —  manual,  constructive,  or  symbolical  —  for  goods  sold 
and  delivered  was  sustained.  This  fully  vindicates  the  views  we 
have  expressed  in  our  comments  ^  on  what  we  think  was  the  in- 
correct decision  of  Lord  EUenborough  in  Anderson  v.  Scot.^ 

But  while  we  think  the  court  in  Wright  v.  Percival  ^  were  per- 
fectly correct  in  their  decision,  in  which  Lord  Ellenborough's  7iisi 
prius  decision  in  Anderson  v.  Scot*  (with  which  we  strongly  dif- 
fered) was  in  effect  clearly  overruled,  we  think  their  obiter  dicta 
on  another  point  were  as  unsound  and  as  entirely  illogical  as  was 
the  decision  of  Lord  EUenborough  in  Anderson  v.  Scot.  It  will 
be  noticed  by  our  statements  of  facts,  and  by  our  extracts  from 
the  judgments  in  Wright  v.  Percival,  that  the  court  held  that  an 
action  for  goods  sold  and  delivered  would  lie  ;  that  the  carriage 
in  question  had  been  accepted,  actually  delivered,  and  actually 
received,  —  so  that  the  defendant  had  "  full  control "  over  the 
carriage,  properly  "  exercised  an  act  of  ownership "  over  it, 
"  received  possession  of  the  carriage,"  had  the  full  right  "  to  take 
it  away,"  and  "  was  prevented  from  doing  so  onli/  by  the  unfavor- 
able state  of  the  weather,"  there  having  been  "  a  complete  delivery." 
Clearly,  on  these  facts,  an  action  for  goods  sold  and  delivered 
would  well  lie.  And  yet,  although  it  was  thus  so  emphatically 
lield  that  there  had  been  this  actual  and  complete  transmutation 
of  both  property  and  possession  in  and  to  the  defendant,  so  that 
notliing  but  an  action  for  goods  "  sold  and  delivered  "  would  lie 
for  the  carriage,  —  the  property  and  possession  in  which  had  be- 
come fully  vested  in  the  defendant,  —  Patteson,  J.,  says,  that  if, 

1  Supra,  p.  323.  »  8  L.  J.  N.  s.  Q.  B.  258. 

2  1  Camp.  235,  n.  *  1  Camp.  235,  n. 


348 


COMMENTARIES   ON  SALES. 


[book   IV. 


under  these  facts,  he  had  put  it  to  the  jury  that  "  there  could 
have  been  no  delivery  because  the  plaintiffs  had  not  parted  zvith 
their  lien,  they  had  found  a  right  verdict  in  spite  of  his  misdirec- 
tion" (meaning,  thereby,  that  he  was  wrong  in  saying  that,  as  the 
lien  continued,  there  could  have  been  no  actual  delivery  and  actual 
receipt).  Lord  Denman,  C.  J.,  thought  it  impossible  Patteson, 
J.,  could  have  "  used  such  language  ; "  and  although  he  held  em- 
phatically, as  did  all  the  other  members  of  the  court,  that  there 
was  a  complete  aoceptauce,  delivery,  and  receipt  by  the  vendee, 
so  that  she  had  "  full  control  over  the  goods  in  question,  and  the 
power  of  taking  them  away,"  the  facts  showing  "  that  the  plain- 
tiff's gave  and  the  defendant  received  possession  of  the  carriage," 
yet,  extra  judicially,  they  held,  notwithstanding  all  this,  that 
the  vendor's  lien  still  continued,  although  both  property  and  pos- 
session were  in  the  vendee.  Just  as  effectually,  we  think,  as  the 
vendor  is  unable  to  maintain  an  action  against  the  vendee  for 
not  accepting  goods,  where  the  goods  have  been  in  whole  ac- 
cepted, actually  delivered,  and  actually  received ;  so,  we  think, 
where  the  whole  of  the  goods  have  been  accepted,  actually  de- 
livered, and  (correlatively)  actually  received,  so  that  the  statute 
is  satisfied,  and  so  that,  the  property  and  possession  have  passed 
to  the  vendee  (as  it  was  held  they  did  in  Wright  v.  Percival),^  so 
that  an  action  for  not  receiving  the  goods  would  have  been  im- 
proper, and  an  action  for  goods  sold  and  delivered  be  sustained : 
there,  we  think,  it  is  clear  the  lien  is  gone ;  and  that  if  the 
vendor  have  so  passed  to  the  vendee  the  property  and  pos- 
session in  the  goods,  even  though  the  goods  are  subsequently 
detained  in  the  custody  of  the  vendor,  his  possession  is  simply 
that  of  the  vendee,  as  custodian,  and  his  right  of  lien  is  gone, — 
gone  with  the  possession  which  he  delivered  to  the  vendee,  —  so 
that  his  adverse  detention  would  be  unlawful,  justifying  against 
him  trover,  or  replevin,  in  its  modern  form,  for  the  unlawful 
detaining. 

Elmore  v.  Stone  ^  is  directly  in  point.  There  a  count  for  the 
price  of  two  horses,  as  for  goods  sold  and  delivered,  was  sus- 
tained, it  being  held  that  there  had  been  an  acceptance,  actual 
delivery,  and  actual  receipt,  the  property  and  possession  having 
passed  to  the  vendee.  The  horses  (as  the  carriage,  in  Wright  v. 
Percival),3  after  the  transmutation  of  the  property  and  possession 
in  and  to  them  had  been  made  to  the  vendee,  remained  in  the 
custody  of  the  vendor ;  but,  notwithstanding  this,  the  court  held, 
correctly  beyond  any  doubt,  that  the  possession  was  in  the  vendee, 


1  8  L.  J.  N.  s.  Q.  B.  258. 

2  1  Taunt.  458,  stated  supra. 


8  8  L.  J.  x.  s.  Q.  B.  2r.8. 


PART    VI.]  THE   ACCEPTANCE.  349 

and  that  the  lien  was  gone,  Lord  Mansfield,  C.  J.,  in  delivering 
the  judgment,  saying :  "  Under  many  events  it  ml(jht  appear  hard 
if  the  plaintiff  should  not  continue  to  have  a  lien  upon  the  horses 
ivhich  were  in  his  possession  so  long  as  the  ijrice  remained  unpaid  ; 
but  it  was  for  him  to  consider  that  before  he  made  his  agreement. 
After  he  had  assented  to  keep  the  horses  at  livery  they  would,  on 
the  decease  of  the  plaintiff,  have  become  general  assets ;  and  so, 
if  he  had  become  bankrupt,  they  would  have  gone  to  his  assignees. 
The  defendant  could  not  have  retained  them,  although  he  had  not 
received  the  priced  We  examine  the  subject  fully  in  the  next 
succeeding  Part. 

In  Harris  v.  Matthews  ^  there  is  the  same  uncertainty  as  to  the 
effect  of  the  decision,  owing  to  the  use  of  the  term  "  delivery  "  in 
lieu  of  the  "  actual  receipt "  of  the  statute,  and  the  use  of  the 
term  "  acceptance  "  in  a  manner  which  leaves  it  doubtful  what 
meaning  is  attached  by  the  court  to  that  term,  —  whether  strictly 
acceptance,  in  the  sense  in  which  it  is  used  in  the  statute,  or  only 
the  actual  receipt.  From  the  statement  of  facts  in  the  case,  and 
from  some  of  the  expressions  in  the  judgment,  the  case  is  left  in 
doubt  whether,  in  fact,  there  was  not  a  sale,  and  acceptance  at 
the  time  of  sale,  of  specific  goods  at  an  agreed  price,  and  whether 
the  only  question  open  really  was  whether  or  not  a  delivery  at  the 
place  named  therefor  by  the  vendee  was  an  actual  receipt  by  him. 
Thus,  it  was  contended  for  the  defendant  that  "  there  had  been 
no  actual  receipV  of  the  goods  sold,  "within  the  usual  meaning 
of  the  term ;  on  the  contrary,  the  defendant  had  never  taken  the 
goods  which  had  been  left  at  a  public  inn.  ...  It  was  not  proved 
that  the  innkeeper  or  his  servant  was  the  agent  of  the  defendant ; 
and  acceptance  by  them  was  not  an  acceptance  by  the  defendant." 
Here  acceptance  and  actual  receipt  are  confounded.  So  the  court 
itself  is  as  bad.  Littledale,  J.,  in  delivering  the  judgment,  says  : 
"  Tt  appeared  that  the  action  was  for  the  price  of  some  clover-seed 
which  was  sold  in  Banbury  Market  at  a  price  agreed  upon, 
and  the  defendant  directed  it  to  be  detained  in  the  Plough  Inn, 
which  was  the  place  where  he  was  putting  up,  he  being  a  carrier. 
There  is  no  doubt  but  there  was  a  delivery  of  the  clover-seed  ; 
l)nt  the  question  is,  whether  tliere  is  a  sufficient  acceptance  [^query, 
receipt]  under  the  Statute  of  Frauds.  The  cases  that  have  been 
decided  on  the  statute  are  somewhat  contradictory.  It  was  for- 
merly thought  that  a  delivery  to  an  agent  was  sufficient  to  sat- 
isfy the  statute.  Of  late  years  a  diff^erent  rule  has  been  laid 
down,  and  in  the  case  of  Hanson  v.  Armitage"^  the  rule  was  stated 
to  be  that  no  constructive  acceptance  [here  meaning  receipt] 
1  3  Jur.  1192.  2  5  B.  &  Aid.  557. 


350 


COMMENTARIES   ON   SALES. 


[book    IV. 


would  satisfy  the  provisions  of  the  statute  so  long  as  there  was 
absence  of  proof  of  an  express  contract  in  writing.  That  was  a 
case  where  the  gopds  had  been  sent  to  a  wharfinger  to  be  for- 
warded ;  and  here,  if  the  clover-seed  had  been  left  at  the  Plough 
Inn  to  be  forwarded,  I  should  say  that  there  had  been  an  accept- 
ance [^■.  e.,  simply  actual  receipt]  within  the  statute."  In  Han- 
son V.  Armitage  ^  the  contention  of  counsel  was  that  the  buyer 
must  not  only  accept  but  "  actually  receive  "  (the  italics  being 
his  own),  the  contention  apparently  being  that  the  acceptance  or 
receipt  (treated  as  synonymous)  to  be  actual  must  be  personal, 
and  an  "  actual "  manual  receipt  of  the  subject.  And  as  far  as 
anything  definite  can  be  inferred  from  the  holding  of  the  court, 
that,  in  effect,  was  what  they  meant,  as  Abbott,  C.  J.,  in  deliver- 
ing the  judgment  of  the  court,  says :  "  The  court  are  of  opinion 
that  the  acceptance  [treating  it  as  synonymous  with  actual  re- 
ceipt], not  being  hy  the  party  himself,  was  not  sufficient."  Harris 
v.  Matthews,  therefore,  like  Hanson  v.  Armitage,  is  a  very  uncer- 
tain authority,  either  on  the  question  of  acceptance  or  actual 
receipt  under  the  statute.^ 

The  acceptance  in  Dodsley  v.  Yarley  ^  was  clear.  The  defend- 
ant bought  specific  wool  from  the  plaintiff,  for  the  price  of  which 
this  action  was  brought.  The  wool  was,  at  the  time  of  the  sale, 
at  the  plaintiff's ;  the  price  was  agreed  upon,  but  the  wool  was  not 
then  weighed.  It  was  removed  by  the  defendant  to  the  premises 
of  a  third  person,  which  was  the  place  of  deposit  for  the  defend- 
ant's wools,  where  he  had  it  weighed  with  his  other  purchases  of 
wools,  and  packed  in  his  own  sheeting ;  but,  by  the  course  of  deal- 
ing, which  was  tantamount  to  an  agreement  between  the  parties, 
the  wool  was  not  to  be  removed  by  the  defendant  from  its  place 
of  deposit  to  a  distance  until  it  was  paid  for.     It  was  held  that 


^  Stated  supra. 

2  Where  the  huyer  has  accepted  and 
actually  received  the  goods,  this,  under  the 
statute,  makes  the  contract  good  as  to 
both  vendor  and  vendee,  as  does  also  the 
part  payment  or  earnest-money  of  the  stat- 
ute ;  taking  the  case  out  of  the  statute 
equally  as  to  the  vendor  and  the  vendee. 
This  is  a  crucial  test  in  many  cases.  Thus 
if  there  have  been  an  acceptance  and  ac- 
tual receipt  of  some  part  of  the  goods,  or 
a  payment  of  earnest  or  part  payment, 
then  the  contract  of  sale  is  equalh'  en- 
forceable by  the  vendor  and  vendee.  Thus 
tested,  there  are  several  of  the  English 
cases  which  have  been  assumed  to  have 
been  well  decided  that  will  scarcely  bear 
criticism. 

Williams  v.  Burgess,  10  A.  &  E.  499,  is 
a  ca.se  on  the  question  as  to  the  entirety  of 


the  contract  as  affected  by  the  statute  of 
frauds.  There  the  plaintiff  entered  into 
a  parol  agreement  to  sell  a  mare  for  £20, 
subject  to  the  condition  that,  if  it  should 
prove  to  be  in  foal,  defendant  should,  on 
receiving  £12  from  plaintiff,  return  it  on 
request.  Plaintiff  delivered  the  mare  and 
received  £20.  On  its  }iroving  to  be  in 
foal  he  tendered  to  defendant  £12,  and 
requested  him  to  return  the  mare,  which 
defendant  refused  to  do.  It  was  held  tliat 
the  contract  to  return  it  on  payment  of 
£12  was  not  a  distinct  contract  of  sale, 
but  one  of  the  conditions  of  the  original 
.sale  to  defendant  ;  and  that  tlie  deliveiy 
of  the  mare  to  defendant  took  the  whole 
agreement  out  of  the  statute  of  frauds,  so 
as  to  enable  plaintiff  to  sue  defendant  for 
the  refusal  to  return  it. 
3  12  A.  &  E.  632. 


PART    VI.]  THE   ACCEPTANCE.  351 

the  requirements  of  the  statute  had  been  met.^  In  this  very  plain 
case,  too,  of  acceptance  it  was  claimed  by  counsel  that  there  had 
not  been  an  acceptance,  again  using  this  term  as  the  correlative  of 
delivery,  or  as  synonymous  with  receipt.^  So,  in  Bill  v.  Bament,^ 
acceptance  is  used  as  synonymous  for  receipt,  Lord  Abinger,  C.  B., 
saying :  "  In  order  to  make  it  such  an  acceptance  as  to  satisfy  the 
statute,  it  should  appear  that  there  was  a  deliver!/.  .  .  .  For  want 
of  a  delivery  there  was  no  sufficient  acceptance  of  these  goods ; " 
the  italics  being  his  own.  Actual  receipt  is  not  once  named  in 
the  case,  but  throughout  "  delivery  and  acceptance  "  are  treated 
as  though  they  were  correlative  terms,  it  being,  in  effect,  held 
that  there  cannot  be  such  acceptance  unless  the  owner  has  so 
parted  with  the  possession  as  to  be  deprived  of  his  lien,  thereby 
clearly  meaning  the  transfer  of  the  possession  by  the  actual  re- 
ceipt of  tlie  vendee.  Independent  of  the  insufficiency  of  the  actual 
receipt  in  this  case,  the  question  of  the  acceptance  itself  is  a  mat- 
ter of  doubt,  the  minds  of  the  parties  not  having  met  as  to  the 
terms  of  the  contract.  We  think  the  facts  in  the  case  did  not 
even  show  an  acceptance  by  the  defendant  of  the  goods  (for  the 
price  of  which  he  was  sued)  under  any  "  agreement "  between  the 
parties,  as  they  differed  essentially  as  to  one  important  ingredient 
of  the  contract,  the  price  of  the  goods.'* 

Again,  in  Edan  v.  Dudfield,^  acceptance  and  actual  receipt  are 

^  We  state  this  case  more  fully  in  the  *  Endicott,  J.,  says,  in  Knight  i'.  Mann, 

next  succeeding  Part  on  the  questions  of  118  Mass.   143,  145:   "The  test  whether 

actual  receipt  and  lien.  there  is  a  binding  contract  within  the  terms 

2  In  Fricker  v.  Thomlinson,  1  M.  &  G.  of  the  statute  is,  whether  there  was  a  re- 
772,  there  is  a  semhlc  by  the  reporter,  ceipt  and  acceptance  in  pursuance  of  the 
founded  on  an  expression  of  Maule,  J.,  previous  agreement."  And  Bigelow,  J.,  in 
that  there  could  be  an  acceptance  and  re-  Marsh  v.  Hyde,  3  Gray,  331  :  "Proof  of 
ceipt  after  action  brought  to  take  the  case  the  delivery  of  goods,  in  pursua7ice  of  an 
out  of  the  statute  ;  but  the  court  declined  agreevunt  for  their  sale  previously  made, 
to  so  decide.  As  the  statute  declares  that  will  be  as  efficacious  to  secure  parties 
the  contract  .shall  not  be  "good"  without  against  false  swearing  as  if  the  delivery 
the  requisites  there  named,  it  is  clear  that  had  accompanied  the  verbal  contract.  It 
there  must  be  a  good  cause  of  action  at  is  the  fact  of  delivery  under  and  in  ^jur- 
the  time  the  action  was  brought.  In  the  suance  of  an  agreevient  of  sale,  not  the 
same  case  it  was  virtually  .ndmitted  (and  time  when  the  delivery  is  made,  that  the 
see  Barnett  v.  Glossop,  3  M.  &  W.  170  ;  statute  renders  essential  to  the  i^roof  of  a 
Johnson  r.  Dodgson,  2  M.  &  AV.  653)  that  valid  contract.  .  .  .  The  test  whether  a  con- 
evidence  of  the  contract  being  void,  under  tract  is  binding  upon  the  parties  under  the 
the  statute,  coiild  be  given  under  the  gen-  statute  of  frauds  is,  whether  the  delivery 
eral  issue.  The  reason  of  this  is  because  and  acceptance,  whenever  they  took  place, 
the  general  issue  is  a  denial  that  there  is  tvere  in  pursuance  of  a  previous  agreement, 
a  contract;  and,  for  the  same  reason,  where  If  the  verbal  contract  is  proved,  and  a 
there  is  no  contract  at  the  time  of  action  delivery  in  ptcrsiiance  of  it  is  shown,  the 
there  is  nothing  to  sue  on.  Bill  v.  Ba-  requisites  of  tlie  statute  are  fulfilled." 
ment,  9  M.  &  VV.  36,  is  an  express  au-  Hence,  when  there  has  not  been  an  ac- 
thority  that  there  must  be  a  good  cause  of  ceptance  "pursuant  to  an  agreement,"  the 
action,  under  the  statute  of  frauds,  at  the  parties  not  being  ad  idem,  there  has  been 
time  of  action.  This  is  correct  beyond  no  such  acceptance  as  will  take  the  case 
question.  out  of  the  statute.     See  ante,  p.  345,  n.  2. 

8  9  M.  &  W.  36.  M  Q.  B.  551. 


352 


COMMENTAKIES   ON   SALES. 


[book  IV. 


treated  as  being  the  same.  In  this  case  the  acceptance  was  be- 
yond any  doubt ;  the  only  question  was  whether  the  constructive 
receipt  in  the  case  meant  the  actual  receipt  of  the  statute.  The 
facts  were  that,  goods  of  the  plaintiff  being  in  defendant's  hands 
for  the  purpose  of  being  sold  by  defendant  for  the  plaintiff,  de- 
defendant  told  plaintiff  that  he,  .defendant,  would  take  them  him- 
self at  a  price  agreed  on.  Defendant  afterwards  sold  them  to  a 
third  party,  and  after  that,  in  a  written  account  current  delivered 
to  plaintiff",  debited  himself  with  the  price  of  the  goods.  In  an 
action  for  goods  sold  and  delivered,  the  jury  having  found  for  the 
plaintiff,  it  was  claimed  that  the  statute  requiring  an  actual  receipt 
could  not  be  satisfied  in  the  case  of  one  at  the  time  of  the  bar- 
gain being  possessed  of  the  goods,  inasmuch  as  that  circumstance 
prevented  them  from  being  delivered  to  him,  and  actually  received 
by  him,  in  virtue  of  the  sale.  The  reporter's  note  is  that  there 
was  "  evidence  upon  which  a  jury  might  infer,  as  against  defend- 
ant, a  contract  for  the  sale  of  goods  by  plaintiff  to  defendant,  and 
an  acceptance  by  defendant  under  such  contract."  Tlie  reporter's 
note  is  warranted  by  the  language  incorrectly  used  by  the  court, 
but  the  ratio  decidendi  of  the  case  is  that  there  was  a  construc- 
tive receipt  which  met  the  requirements  of  the  actual  receipt  of 
the  statute.^ 


'  In  an  American  work  (Wood  on  Stat. 
of  Frauds,  p.  575,  §  311),  Edan  v.  Dud- 
field,  1  Q.  B.  551,  is  improperly  cited  as 
"  a  leading  case  "  to  show  that  there  may 
be  a  constructive  acceptance  of  goods  under 
the  statute.  What  the  case  really  holds 
is,  that  there  may  be  a  constriictive  receipt 
which  will  be  equivalent  to  the  "actual" 
receipt  required.  It  is  more  correctly  cited 
by  a  very  careful  and  able  American  writer 
to  show  that,  under  the  facts,  "there  was 
proper  evidence  to  go  to  the  jury  to  war- 
rant their  finding  a  constructive  delivery 
and  receipt  by  the  buyer."  Browne  on  Stat, 
of  Frauds,  4th  ed.,  §  319  h.  It  is  also  cited 
by  that  most  careful  and  able  writer,  Black- 
burn, to  show  that  there  was  an  actual 
receipt,  not  a  constructive  acceptance. 
Blackburn  on  Sales,  2d  ed.,  34.  Benja- 
min, too,  properly  cites  it  to  show  what 
is  an  actual  receipt,  inserting  the  word 
"  (receipt  ?)  "  in  parenthesis,  in  lieu  of  the 
improper  word  "  acceptance  "  of  Lord  Den- 
man,  C.  J. 

See  Pettitt  v.  Mitchell,  4  M.  &  G.  819, 
where  the  term  "  delivery  "  was  held  to  be 
open  to  different  meanings.  At  p.  834  by 
counsel:  "Inspection  is  not  the  same  as 
delivery.  A  party  would  have  a  riglit  to 
inspect  before  bidding  ;  that  would  not  be 
a  delivery.  The  term  delivery  in  the  con- 
dition is  synonymous  with  taking  away; 


and  that  condition  means  that  there  must 
be  payment  before  the  goods  are  delivered 
to  be  taken  away  ;  but  that  does  not  ex- 
clude the  previous  right  of  inspection. 
There  may  be  a  delivery  to  inspect,  quite 
distinct  from  a  delivery  to  take  away.  In 
the  former  case  no  property  would  pass. 
If  a  man  goes  into  a  shop  and  asks  to  look 
at  an  article,  and  the  shopkeeper  delivers 
it  to  him  to  look  at,  and  he  runs  off  with 
it,  that  would  be  a  felony.  [Tindal,  C.  J. 
There  is  no  doubt  of  that.]  Or  if  a  party 
bids  at  an  auction,  without  any  intention 
to  pay,  and  the  thing  he  has  bid  for  is  de- 
livered to  him,  and  he  takes  it  away,  it  is 
submitted  that  that  also  would  be  felonv. 
[Tindal,  C.  J.  Perhaps  it  would;  but  that 
does  not  appear  to  advance  the  argument.] 
It  shows  that  the  phrase  'delivery'  may 
be  used  in  different  senses."  In  the  same 
way  the  word  "accept"  of  the  statute 
means  the  receiving  with  assent  or  ap- 
proval as  the  subject  of  the  contract,  not 
the  "actual  receipt,"  in  the  sense  of  re- 
ceiving with  the  absolute  control  of  the 
property,  as  owner.  That  is  covered  by 
"actual  receipt"  itself;  not  by  the  pre- 
vious word  "accept,"  with  its  more  lim- 
ited meaning.  Here,  again,  obviously,  the 
word  "receiving"  has,  like  "acceptance" 
and  "delivery,"  different  meanings. 


PART   VI.]  THE   ACCEPTANCE.  353 

But  for  the  confusion  in  tlie  English  courts,  particularly  in  the 
Court  of  Queen's  Bench,  in  confounding  the  terms  "accept" 
and  "  actually  receive  "  of  the  statute,  with  each  other,  Bushel  v. 
Wheeler  ^  would  be  a  more  valuable  case  on  the  question  of  ac- 
ceptance under  the  statute  than  it  even  now  is.  The  action  was 
brought  by  the  assignees  of  A.,  a  bankrupt,  for  goods  sold  and 
delivered :  the  plea  being  the  general  issue.  The  facts  were  that 
on  March  19,  1842,  the  defendant,  who  was  a  miller  in  Hereford, 
gave  to  A.,  who  was  a  manufacturer  of  machinery  in  Bristol,  a 
parol  order,  at  the  manufactory,  for  some  mill  machinery,  direct- 
ing him  to  forward  it  by  the  Hereford  sloop,  belonging  to  one  B., 
which  was  the  usual  mode  of  conveying  goods  by  water  from 
Bristol  to  Hereford.  On  April  23  the  machinery  was  so  forward- 
ed, directed  to  the  defendant ;  and,  on  the  2oth,  an  invoice  was 
sent  to  the  defendant,  with  a  letter  of  advice,  by  post ;  there  being 
on  the  invoice  a  printed  notice  that  the  goods  were  supplied  at 
three  months'  credit.  On  the  arrival  of  the  machinery  at  Here- 
ford, B.,  the  owner  of  the  sloop,  put  it  into  his  oivn  warehouse,  and 
the  defendant  was  informed  of  the  fact.  The  defendant  did  not 
return  the  invoice,  nor  give  any  answer  to  the  letter  of  advice,  nor 
did  he  interfere  with  the  machinery  in  any  way,  which  continued 
to  remain  in  the  warehouse  of  the  carrier.  At  the  close  of  the 
plaintiff's  case,  the  defendant's  counsel  applied  for  a  nonsuit,  "  on 
the  ground  that  the  Statute  of  Frauds  had  not  been  satisfied  by 
proof  of  a  delivery  and  acceptance ; "  acceptance  here  being,  as 
usual,  palpably  used  as  the  correlative  of  delivery  and  synonymous 
with  actual  receipt.  The  judge  thought  there  was  some  evidence 
for  the  jury,  which,  we  think,  it  is  perfectly  clear  there  was  not. 
Evidence  was  then  given  for  the  defendant,  that,  six  or  seven 
months  after  the  machinery  had  been  sent,  and  when  it  was  still 
in  B.'s  warehouse,  the  defendant  told  the  warehouseman  (the 
original  carrier)  that  he  did  not  intend  to  take  it.  In  October  the 
machinery  was  taken  hack  to  Bristol;  obviously  by  the  carrier, 
who  seems  to  have  taken  it  to  his  own  wharf  at  Bristol ;  the  goods 
having  never  been  out  of  the  possession  of  the  carrier,  nor  in  the 
possession  of  the  defendant.  The  judge  (Erskine,  J.)  directed 
the  jury,  that  it  was  competent  for  the  defendant  to  refuse  to 
take  the  goods,  and  to  set  up  as  a  defence  that  they  had  not  been 
delivered  to  him,  and  left  to  them  the  question,  whether  there 
had  been  an  acceptance  in  fact.  The  jury  negatived  such  an 
"  acceptance ; "  and  the  judge  thereupon  directed  a  verdict  for 
the  defendant,  with  leave  to  the  plaintiffs  to  move  to  enter  a 
verdict  for  .£24  15s.  8c?.,  the  value  of  the  machinery,  if  the  court 

1  8  Jur.  582  ;  s.  c.  15  Q.  B.  442,  n. 
TOL.  n.  23 


354 


COMMENTARIES   ON   SALES. 


[book  IV. 


should  be  of  opinion  that  the  "  acceptance  "  by  the  carrier  was 
sufficient  to  satisfy  the  statute.  All  through,  here,  the  term 
"  acceptance  "  is  used  in  the  customary  indefinite  way,  as  though 
it  meant  the  "  accept  and  actually  receive  "  of  the  statute,  or  as 
though  the  word  "  accept "  in  the  statute  was  mere  surplusage,  or 
was  covered  by  the  words  "actually  receive;"  the  fact  being  ig- 
nored that  the  statute  requires  that  the  buyer  should  "  accept  part 
of  the  goods  so  sold,"  as  well  as  "  and  actually  receive  the  same." 

The  case  of  Bushel  v.  "Wheeler  ^  is  a  very  important  case ;  but 
we  fail  to  find  it  intelligently  discussed  by  any  of  the  text-writers.^ 

In  this  case,  at  last.  Lord  Denman,  C.  J.,  seems  to  have  attained 
a  kind  of  hazy  knowledge  that  the  word  "  accept "  in  the  statute 
means  something  more  than,  or  different  from,  receive.  Thus, 
where  counsel  said,  arguendo,  and  in  doing  so,  showed  the  incor- 
rect view  of  Tindal,  C.  J.,  in  the  matter :  •'  In  Maberley  v.  Shep- 
pard,3  Tindal,  C.  J.,  in  delivering  the  judgment  of  the  court,  said, 
that  'the  words  of  the  statute  point,  as  clearly  as  words  can,  to  an 
actual  delivery  and  actual  receiving  of  part  or  the  whole  of  the 
goods  sold;'"  Lord  Denman  added:  "The  words  of  the  statute 
are  even  stronger ;  for  the  goods  may  actually  come  into  the  ware- 
house of  the  buyer,  and  yet  not  be  accepted,  which  is  the  word 
used  by  the  statute."  And  again,  in  his  judgment,  he  says : 
"  The  general  object  of  the  statute,  which  the  courts  have  been 
desirous  to  uphold,  is  to  compel  parties  to  make  their  contracts  in 
writing.  When  the  contract  is  not  so  made,  the  question,  wheth- 
er there  has  been  an  acceptance,  must  be  a  question  of  evidence, 
varying  very  much  according  to  the  particular  circumstances  of 
each  case.  The  purchaser  may  depute  another  person  to  exercise 
a  judgment  for  him  as  to  the  quality  of  the  goods,  or  he  may  rely 
upon  the  judgment  and  integrity  of  the  manufacturer  from  whom 
he  orders  the  goods.  In  these  cases,  it  seems  to  me,  there  may  cer- 
tainly he  an  acceptance  within  the  statute  ivithout  an  actual  manual 
receiving.'^  But,  even  here.  Lord  Denman  seems  still  to  have  been 
laboring  under  the  delusion,  that,  on  the  one  hand,  the  acceptance 
would  dispense  with  the  actual  receipt ;  and,  on  the  other,  that 
the  "  actual  manual  receiving  "  necessarily  involves,  or,  in  effect, 
includes,  an  acceptance ;  which,  as  must  be  perfectly  clear  to  the 
intelligent  student  of  law,  is  very  far  from  being  the  case. 

The  judgment  of  Williams,  J.,  too,  shows  the  want  of  intelli- 
gence which  characterizes  the  judgments  of  the  court.  He  says : 
"  I  am  of  opinion  that  there  should  be  a  new  trial  in  this  case. 

1  8  Jur.  532  ;  15  Q.  B.  442,  n.  316  h,  333;  Wood  on  Stat,  of  Frauds,  605; 

2  See  Benj.  on  Sales,  §  163  ;  Camp,  on  Blackburn  cites  it,  but  does  not  discuss  it. 
Sales,  173,  182;  Ch.  on  Contracts  (9th  ed.),     Blackb.  on  Sales  (2d  ed. ),  23. 

372  ;   Br.  on  Stat,  of  Frauds,   §§  316  g,  »  10  Bing.  99. 


PART    Vr.]  THE    ACCEPTANCE.  355 

The  moment  it  is  lield  that  manual  acceptance  [used  here,  pal- 
pably, as  the  equivalent  of  the  actual  receipt,  not  ot  the  accept- 
ance, of  the  statute]  by  the  buyer  is  not  necessary  to  satisfy  the 
strong  language  of  the  statute,  it  follows  that  a  constructive  ac- 
ceptance [?  receipt]  is  sufficient.  The  larger  in  bulk  the  goods 
are,  and  therefore,  in  general,  the  greater  the  value  of  the  goods 
in  question,  the  more  important  is  an  actual  receipt  of  them  by 
the  buyer  himself ;  and,  therefore,  in  the  nature  of  things,  a  con- 
structive receipt  must  be  considered  as  satisfying  the  statute.  If 
then,  there  may  be  a  constructive  receipt,  the  question  must  be  left 
to  the  jury.  It  would  be  absurd  to  attempt  to  lay  down  any  general 
rule  as  to  what  amounts  to  an  acceptance.  It  must  be  submitted  to 
the  jury  in  each  particular  case,  —  Has  there  or  has  there  not  been 
an  actual  acceptance  ?  "  ^  We  think  it  difficult  to  find,  anywhere, 
a  stronger  instance  of  "  confusion  worse  confounded ''  than  this  ! 
The  rule  was  made  absolute  for  a  new  trial.  We  think  the  refusal 
to  grant  a  nonsuit,  and  the  decision  of  the  court  to  grant  a  new 
trial,  were  both  wrong.  In  the  first  place,  as  far  as  can  be  learned 
from  the  statements  of  fact,  and  from  the  judgments,  in  both  re- 
ports, whatever  evidence  there  may  have  been  of  an  acceptance, 
there  seems  not  to  have  been  a  scintilla  of  evidence  of  an  actual 
receipt  by  the  defendant.  Then,  next.  The  jury,  too,  having 
negatived  "  an  acceptance  in  fact,"  apparently  meaning  by  this 
that  the  defendant  had  not,  under  the  statute,  actually  received 
any  part  of  the  goods ;  and  the  question,  assuming  that  there  was 
any  evidence  to  sustain  the  affirmative  on  this  question,  being  for 
them,  the  case  was  concluded.  The  court,  however,  seeming  to 
have  discovered  that  the  term  "  actual  receipt  "  of  the  statute, 
was,  whether  it  included  the  acceptance  of  the  statute  or  not,  —  a 
point  which  seems  never  to  have  suggested  itself  to  them,  —  such 
a  receipt  as  at  common  law  was  a  good  receipt,  whether  manual, 
constructive,  or  symbolical ;  thought  that  the  question,  whether 
or  not  there  had  been,  if  not "  an  acceptance  in  fact,"  a"  constructive 
acceptance"  (meaning  thereby,  a  constructive  receipt),  should  ex- 
pressly be  submitted  to  the  jury.  As,  however,  the  jury,  if  any 
sense  at  all  can  be  made  out  of  tlie  case,  in  the  mixed  way  in 
wliich  the  term  "  acceptance  "  is  used  throughout  it,  had  already 
decided  that  there  had  been  no  actual  receipt  within  the  statute ; 
and,  therefore,  they  had  already  found  that  there  had  been  no 

^  The   very  thing  that  Williams,    J.,  for  the   defendant   to   refuse  to  take  the 

here  says  should  be  submitted  to  the  jury  goods,  and  to  set  up  as  a  defence  that  they 

was  precisely,  virtually  in  the  very  terms,  had  not  been  delivered  to  him,  and  left  to 

submitted  in  Bushel  v.  Wheeler,   8  Jur.  them  the  question  ivhether  there  hnd  been 

532,   to   the   jury.     "The   learned  judge  an  acccj)tance  in  fact .     The  jury  negatived 

directed  the  jury  that  it  was  competent  such  an  acceptance."     Ibid.  533. 


356  COMMENTARIES   ON   SALES.  [BOOK   IV. 

"  actual  receipt,"  either  manual,  constructive,  or  symbolical ;  they 
had  already  decided  that  very  question.  If,  to  make  any  sense  out 
of  the  case,  the  court  were  justified  in  requiring  the  question  to 
be  submitted  to  the  jury,  whether  or  not  there  had  been,  if  not  a 
manual,  yet  a  constructive  receipt ;  just  as  reasonably  they  should 
have  directed  that  the  question  should  have  been  submitted  to 
them,  if  there  were  not  an  express  acceptance,  was  there  or  not  an 
implied  one  ?  By  their  finding,  in  the  sense  of  the  whole  mass  of 
the  English  cases,  when  they  found  that  there  had  been  "  no  ac- 
ceptance "  of  the  goods  "  in  fact "  by  the  defendant,  the  jury 
would  seem  to  have  found  that  there  had  been  no  acceptance,  ex- 
press or  implied,  and  no  "  actual  receipt,"  either  manual,  construc- 
tive, or  symbolical. 

But,  on  another  ground  taken  in  the  case,  the  court  below  was 
wrong  in  not  granting  the  nonsuit,  and  the  Court  of  Queen's  Bench 
were  wrong  in  ordering  a  new  trial.  Entirely  aside  of  the  ques- 
tion that  there  was  not,  as  far  as  the  facts  of  the  case,  as  stated 
in  either  of  the  reports,  indicate,  a  tittle  of  evidence  to  show  an 
actual  receipt  of  the  machinery  by  the  defendant ;  it  was  claimed, 
independently  of  the  question  of  acceptance  of  the  goods,  under 
the  statute,  that  there  was  no  delivery  of  the  machinery  to  the 
defendant;  and,  therefore,  correlatively,  of  course,  there  could  be 
no  receipt  by  him,  because  there  could  be  no  actual  receipt  where 
the  lien  is  retained  by  the  vendor,  or  his  right  of  stoppage  in  tran- 
situ remains  ;  citing  Holroyd,  J.,  in  Baldey  v.  Parker.^  That  this 
right  did  remain,  was,  in  effect,  conceded  by  the  court ;  but  it 
was  unsoundly  alleged,  that  this  did  not  furnish  a  test  whether 
there  had  been  an  actual  receipt  or  not;  Coleridge,  J.,  saying : 
"That  right  would  remain  if  there  was  a  note  or  memorandum  in 
writing,  and,  therefore,  much  cannot  be  collected  from  applying 
that  test."  And  Lord  Denman,  C.  J. :  "  The  tests  which  have 
been  suggested,  from  a  consideration  of  the  right  of  stoppage  in 
transitu,  or  of  the  right  of  lien,  appear  to  me  very  imperfect,  for 
the  purpose  of  ascertaining  the  meaning  of  this  provision  of  the 
Statute  of  Frauds." 

Notwithstanding  these  very  emphatic  expressions  of  opinion,  we 
confidently  submit  that  the  continuation  or  extinction,  whether  of 
the  lien  or  of  the  right  of  stoppage  in  transitu,  which  is  a  kind 
of  continuation  of  the  lien,  does  furnish,  under  facts  such  as  those 
in  this  case,  an  indubitable  test  as  to  whether  or  not  there  have 
been  an  acceptance  and  actual  receipt,  by  the  vendee,  of  the  goods 
purchased  by  him.  It  is  our  purpose  in  the  next  succeeding 
Part   to  consider  fully   the  question  of  lien  in  connection  with 

1  2  B.  &  C.  37,  44  ;  stated  by  us,  supra,  p.  334. 


PART   VI.]  THE   ACCEPTANCE.  357 

the  actual  receipt  of  the  statute ;  and,  in  a  later  Part,  we  pro- 
pose examining  fully  the  law  as  to  stoppage  in  transitu.  Here,  on 
this  latter  point,  we  may  say,  as  was,  in  effect,  conceded  by  the 
court,  that  the  facts  did  not  show,  at  any  time  down  to  that  of  the 
return  of  the  machinery  by  the  carrier  to  his  own  wharf  at  Bristol, 
that  the  machinery  was  out  of  the  actual  possession  of  the  carrier, 
or  in  that  of  the  defendant,  so  as  to  have  terminated  the  right  of 
stoppage  in  transitu.  The  authorities,  which  we  will  cite  fully  in 
our  Part  on  that  subject,  show  correctly  and  conclusively  that,  un- 
der such  facts  as  those  in  Bushel  v.  Wheeler,  the  right  of  stoppage 
in  transitu  was  not  gone.  Then,  the  possession,  being  in  the  car- 
rier, qud  carrier,  was  not  in  the  defendant.  And  the  possession 
not  being  in  him,  there  could  not  have  been  (saying  nothing  of 
acceptance,  which  was  also  necessary  in  the  case  to  get  it  out  of 
the  statute)  an  actual  receipt,  manual,  constructive,  or  symboli- 
cal ;  for  the  actual  receipt  is  the  transfer  of  the  possession  by  an 
"  actual,"  that  is  to  say,  a  manual,  constructive,  or  symbolical 
delivery.  Hence  there  was  no  actual  receipt  by  the  defendant, 
and,  therefore,  there  was  no  question  to  be  submitted  to  the  jury. 
While  we  find  Benjamin  on  Sales  ^  fairly  redolent  with  error,  yet, 
with  the  exception  of  his  having  ignored  the  position  of  the  court 
in  Bushel  v.  Wheeler,  and  in  several  other  cases,  in  the  following 
he  is  substantially  correct,  within  limits  which  he  has  failed  to 
notice,  but  which  do  not  affect  the  law  as  it  is  applicable  to  the 
facts  in  Bushel  v.  Wheeler :  "  It  will  already  have  been  perceived 
that  in  many  of  the  cases  the  test  for  determining  whether  there 
has  been  an  actual  receipt  by  the  purchaser,  has  been  to  inquire 
whether  the  vendor  has  lost  his  lien.  Receipt  implies  delivery, 
and  it  is  plain  that  so  long  as  vendor  has  not  delivered,  there  can 
be  no  actual  receipt  by  vendee.  The  subject  was  placed  in  a  very 
clear  light  by  Holroyd,  J.,  in  his  decision  in  Baldey  v.  Parker.^ 
'  Upon  a  sale  of  specific  goods  for  a  specific  price,  by  parting  with 
the  possession,  the  seller  parts  with  his  lien.  The  statute  contem- 
plates such  a  parting  with  the  possession,  and,  therefore,  so  long 
as  the  seller  preserves  his  control  over  the  goods,  so  as  to  retain 
his  lien,  he  prevents  the  vendee  from  accepting  and  receiving  them 
as  his  own  within  the  meaning  of  the  statute.'  No  exception  is 
known  in  the  whole  series  of  decisions  to  the  proposition  here 
enounced,^  and  it  is  safe  to  assume,  as  a  general  rule,  that  when- 

1  So  very  different  from  that  work  on  *  Benjamin  here  is  completely  astray, 
which  it  is  ostensibly  founded,  and  which  quite  as  much  so  as  were  Lord  Denman 
it  very  largely  appropriates,  written  by  and  Coleridge,  J.,  in  Bushel  v.  Wheeler, 
one  of  the  ablest  of  the  English  judges  8  Jur.  532.  When  a  note  or  memoran- 
or  writers  of  his  own  time,  or  of  previous  dum  in  writing  of  the  contract  is  signnd 
times  —  Blackburn  on  Sales.  by  the  party  sought  to  be  charged,  and 

2  2  B.  &  C.  37.  the  goods  are  not  sold  on  credit,  the  case 


358  COMMENTARIES   ON   SALES.  [BOOK   IV. 

ever  no  fact  has  been  proven  showing  an  abandonment  by  the 
vendor  of  his  lien,  no  actual  receipt  by  the  purchaser  has  taken 
place.  This  has  been  as  strongly  insisted  on  in  the  latest  as  in 
the  earliest  cases."  ^ 

Precisely  the  same  principle  applies  to  the  right  of  stoppage  in 
transitu  (which,  as  we  have  stated,  is  a  kind  of  continuation  of 
the  lien)  as  it  does  to  the  lien  itself.  And  this  is,  in  effect,  ad- 
mitted, as  will  be  seen  by  the  utterances,  which  we  have  quoted, 
of  both  Lord  Denman  and  Coleridge,  J.  Both  of  them  connect 
the  lien  and  stoiypage  in  transitu  as  being  equally  within  the  same 
principle  on  the  subject. 

But  it  is  said,  and  the  same  reasoning  is  used  in  other  English 
cases,  that  the  test  is  worthless ;  because  the  right  of  lien  and  of 
stoppage  in  transitu  would  remain  if  there  were  a  note  or  memo- 
randum of  the  contract  in  writing.  So,  indeed  it  would;  and  so 
it  would  remain  if  there  were  a  payment  as  of  earnest,  or  part 
payment ;  and,  as  we  have  shown  in  our  note  below,  equally  so 
where  there  have  been  a  mere  acceptance  and  actual  receipt  of  some 
part  of  the  goods  without  anything  more.  But  that  was  not  the 
case  of  Bushel  v.  Wheeler.  There,  there  was  no  acceptance  and 
actual  receipt  merely  of  some  part  of  the  goods^  to  take  the  case 
out  of  the  statute.  But  there  were  an  acceptance  and  actual  receipt 
of  the  whole  of  the  goods,  or  there  was  nothing.  But  if  there  had 
been  an  acceptance  and  actual  receipt  by  the  purchaser  of  the 
whole  of  the  goods,  then  both  the  property  and  the  possession 
would  have  been  in  him,  the  right  of  lien  and  of  stoppage  in 
transitu  would  have  been  gone,  and  the  vendor  could  have  sus- 
tained against  him  an  action,  for  goods  accepted  and  actually 
received,  as  for  goods  sold  and  delivered.  It  was  thus  in  their 
failure  to  distinguish  the  difference  in  the  effect  of  the  acceptance 
and  actual  receipt  of  but  part  of  the  goods  to  make  the  contract 
"  good "  under  the  statute,  but  not  affecting  the  right  either  of 

is  taken  out  of  the  statute  ;  but  the  ven-  lien  and  the  right  of  stoppage  in  traiisitic 

dor  has  neither  parted  with  his  possession  both  continue.     Lord  Denman,  Coleridge, 

nor  his  lien.     Precisely  the  same  is  the  J.,   and  otlier  English  judge,s  saw  this  ; 

effect  of  the  payment  of  earnest  or  part-  and  they  were  so  far  right.     And  vet,  as 

payment.     The  case  is  taken  out  of  the  we  show  in  our  text,  they  were  still,  in 

statute,  but  the  possession,  and  the  ven-  their  misapplication  of  this  principle,  as 

dor's  lien,  as  an  incident  of  it,  both  re-  radically  wrong  in  Bushel  v.  Wheeler,  and 

main.       And    precisely   the    same    effect  in  the  other  English  cases  where  the  same 

too  is  produced  where,  under  the  statute,  mistake  was  made,  in  the  one  direction, 

the  buyer  has  accepted  "part  of  the  goods  where  the  whole  of  the  goods  have  been 

so  sold,"  and  actually  received  the  same,  accepted    and  received,   as  Benjamin,  in 

The  statute  here  simply  declares  that,  in  his  popular  work  on  Sales,   was,   in   the 

either  of  these  cases,   "the   contract  for  other;  i.  e.  where  only  a  part  of  the  goods 

the  sale  .  .  .  shall  be  allowed  to  be  good,"  have  been  accepted  uiid  received  ;  the  lien 

and  goes  no  further.     So,  there  may  be  an  continuing  in  this  latter  case  and  not  in 

"  actual  receipt,"  and  the  identical  actual  the  former, 
receipt  named  in  the  statute,  and  yet  the  i  Beiij.  on  Sales,  §  187. 


PART   VI.]  THE   ACCEPTANCE.  359 

lieu  or  of  stoppage  in  transitu,  in  the  vendor,  in  respect  to  the 
goods,  the  possession  of  which,  with  its  attendant  Hen,  he  has 
never  parted  with ;  from  the  case  where  not  but  a  part  has,  but  the 
whole  of  the  goods  have,  been  accepted  by  the  vendee,  actually 
delivered  by  the  vendor,  and  as  actually  received  by  the  vendee 
(whether  manually,  constructively,  or  symbolically),  so  that  the 
property  and  possession  have  alike  absolutely  passed  to  the  ven- 
dee, discharged  of  the  lien,  and  exempted  from  the  liability  of 
stoppage  in  transitu.  It  was  in  the  failure  to  notice  this  distinc- 
tion that  Lord  Denman,  Coleridge,  J.,  and  the  other  English 
judges,  have  been  as  wrong  on  the  one  hand  as  the  late  lamented 
Mr,  Benjamin  was  on  the  other. 

The  case  of  Bushel  v.  Wheeler,^  about  the  incorrectness  in 
the  decision  of  which  we  have,  as  we  have  shown,  no  doubt  what- 
ever, did  not  meet  with  the  approval  of  the  Court  of  Exchequer, 
in  Norman  v.  Phillips.^  The  cases  are  very  similar,  and  the  law 
as  laid  down  in  this  latter  case,  outside  of  the  extent  to  which  the 
court  were  hampered  by  the  decision  of  Bushel  v.  Wheeler,  is  ex- 
actly as  claimed  by  us  in  our  comments  on  that  case. 

In  Norman  v.  Phillips,  the  facts  were  that  the  plaintiff  was  a 
timber  merchant  in  London  and  the  defendant  a  builder  in  Wal- 
lingford,  and  that  on  April  17  the  defendant  gave  a  verbal  order 
to  the  plaintiff's  traveller  for  yellow  deals,  amounting  in  value  to 
X32  14s,  4(i.,  with  directions  for  them  to  be  sent  to  the  Padding- 
ton  station  of  the  Great  Western  Railway,  to  be  forwarded  to  him, 
as  had  been  the  practice  between  the  parties  on  previous  occasions. 
On  April  19  the  deals  arrived  at  Wallingford  station,  on  which 
day  the  defendant  was  informed  by  the  railway  clerk  that  they 
were  lying  for  him  at  the  station,  when  he  said  he  would  not  take 
them.  An  invoice  was  also  sent  on  April  27,  which  the  defendant 
received  and  kept ;  but  it  did  not  appear  that  he  had  ever  seen  the 
timber.  On  May  28  the  defendant  informed  the  plaintiff  that  he 
declined  to  take  the  goods,  and  on  June  22  made  a  similar  com- 
munication in  writing  to  the  railway  clerk.  The  defendant,  on 
the  trial  before  Pollock,  0.  B.,  claimed  a  nonsuit,  on  the  ground 
"  that  there  was  no  evidence  of  a  sufficient  acceptance  "  to  satisfy 
the  Statute  of  Frauds.  The  nonsuit  was  refused,  and  a  verdict 
was  ordered  for  the  plaintiff,  with  leave  reserved  for  a  nonsuit  or 
verdict  for  the  defendant.  On  a  rule  obtained,  the  plaintiff's 
counsel  relied  mainly  on  Bushel  v.  Wheeler.^ 

1  8  Jur.  .532.  168  ;  Dodsley  v,  Varley,  12  A.  &  E.  632; 

2  14  M.  &  W.  277.  Phillips  v.  Bistolli,  2  B.  &  C.  511  ;  Egan 
8  8  Jur.  532.     And  see  Dawes  v.  Peck,     v.  Dudfield,   1  Q.  B.  302  ;  Blenkinsop  v. 

8  T.  R.  330  ;  Hart  v.  Sattlev,  3  Camp.     Clayton,  7  Taunt.  597. 
528  ;    Coleman  v.  Gibson,  1  M.  &  Rob. 


360  COMMENTARIES   ON   SALES.  [BOOK   IV. 

The  court  admitted  that  it  was  difficult  to  distinguish  this 
case  from  Bushel  v.  Wheeler,  and  took  time  to  consider.  We 
think  that  there  is  no  substantial  distinction  between  Bushel  v. 
Wheeler  and  this  case,  except  that  in  the  former  case,  while,  as  in 
the  latter,  the  goods  had  never  been  actually  received  by  the  de- 
fendant, the  goods  there,  which  had  in  the  mean  time  remained  in 
the  carrier's  warehouse,  subject  to  the  right  of  stoppage  in  transitu^ 
liad  been  reconveyed  by  the  carrier,  who  all  along  had  retained 
the  actual  possession  of  them,  to  the  original  place  of  shipment, 
where  they  were  still  held  by  the  carrier  at  his  own  wharf ;  he 
thus  as  carrier  exercising  active  domination  over  them  after  they 
had  been  refused  receipt  by  the  vendee.  In  this  respect  Bushel  v. 
Wheeler  is  a  slightly  stronger  case  for  the  defendant  than  Norman 
V.  Phillips. 

On  the  argument  of  Norman  v.  Phillips,  the  law,  as  far  as  it  was 
considered  (with  the  usual  allowance  for  the  confounding  of  the 
terms  "  accept"  and  "  receive"),  we  think  was  correctly  stated. 
Counsel  said :  "  A  delivery  to  a  carrier  named  by  the  vendee  is 
tantamount  to  a  delivery  to  himself  ; "  to  which  Alderson,  B.,  re- 
plied :  "  Can  there  be  an  acceptance  so  long  as  the  buyer  has  a 
right  to  object  to  the  quality  of  the  goods  ?  And  is  he  precluded 
from  objecting  because  he  directs  them  to  be  sent  by  a  particular 
conveyance  ?  The  case  of  Johnson  v.  Dodgson  ^  shows  that  he  is 
not."  And,  again,  by  counsel :  "  In  Coleman  v.  Gibson  ^  it  was  held 
that  a  party,  who  has  the  right  of  approval,  must  refuse  to  accept 
the  goods  in  a  reasonable  time ;  and  if  he  does  not  he  is  to  be 
treated  as  having  accepted  them."  Alderson,  B. :  "  There  is  no 
doubt  that,  by  retaining  goods  which  have  been  delivered  an  un- 
reasonable time,  the  party  to  whom  they  are  delivered  loses  his 
right  to  object  to  them,  and  it  amounts  to  acceptance.  But  I 
cannot  see  how  there  was  any  acceptance  here.  The  person  to 
whose  possession  these  goods  came  was  not  the  person  to  examine 
the  quality  of  them."  Pollock,  C.  B. :  "The  defendant  objected  at 
the  time  to  take  the  goods  away.  He  was  not  bound  to  send 
them  back  again."  Counsel :  "  There  was  evidence  to  go  to  the 
jury  of  acceptance.  He  was  told  of  the  arrival  of  the  goods,  and 
afterwards  received  an  invoice  of  them,  which  he  kept,  without 
informing  the  plaintiff  that  he  declined  to  receive  them.  That, 
it  is  submitted,  is  evidence  of  acceptance."  Alderson,  B, :  "  He 
must  accept  the  goods,  and  actually  receive  the  same,^  to  con- 

1  2  M.  &  W.  653.  statute,  and  the   "  actual  receipt  "  quite 

^  1  M.  &  Rob.  168.  another.       So,    not   only   must   there   be 

^  These   italics   are  by  Alderson,    B.  ;  enough   to    "  constitute    an   acceptance," 

but  the  learned  judge  failed  to  notice  that  but,  beyond  this,  there  must  be  an  actiuil 

the  acceptance  is  one  thing,  under  the  receipt,  consisting  of  an  actual  change  of 


PART   VI.]  THE   ACCEPTANCE.  361 

stitute  an  acccptmcc  within  the  meaning  of  the  statute.  Here 
the  goods  are  sent  in  the  usual  way,  but  when  they  arrive  at  the 
carrier's  warehouse  the  defendant  refuses  to  take  them.  That 
can  scarcely  be  said  to  be  an  acceptance."  Counsel :  "  The  lapse 
of  time  made  it  a  question  for  the  jury,  whether  the  defendant  had 
accepted  the  goods  or  not."  Alderson,  B.  :  "  If  the  carrier  was  not 
the  defendant's  agent  to  accept  the  goods  in  the  first  instance,  I 
do  not  see  how  he  becomes  so  from  the  goods  being  in  his  posses- 
sion for  some  time.  The  strength  of  the  argument  is  certainly 
the  non-communication  of  his  refusal  to  take  them."  Counsel : 
"  It  amounts  to  an  acceptance  by  acquiescence."  Alderson,  B. : 
"  Where  goods  are  in  a  party's  own  hands  he  has  an  opportunity 
of  examining  them ;  and  his  saying  nothing  in  such  a  case  would 
be  evidence  of  acceptance  by  acquiescence."  Counsel :  "  Here  the 
carrier  was  the  agent  of  the  defendant,  designated  by  him ;  and 
he  was  his  agent  not  only  to  receive,  but  to  accept  the  goods." 
Alderson,  B. :  "  No ;  he  was  not  his  agent  to  accept  them.  An 
acceptance  is  not  complete  until  the  party  has  precluded  himself 
from  objecting  to  the  quality  of  the  goods." 

What  was  here  ultimately  mainly  relied  on  was  the  want  of 
prompt  notice  by  the  defendant  to  the  plaintiff  of  the  refusal  to 
receive  the  goods.  But  that,  neither  in  this  case  nor  in  Bushel  v. 
Wheeler,  is  really  a  difficulty  at  all.  To  take  the  case  out  of  the 
statute,  the  plaintiff  must  make  out  affirmatively  that  there  have 
been  both  acceptance  and  actual  receipt.  Where  there  has  been 
no  actual  receipt,  the  fact  of  not  giving  notice  of  a  refusal  to 
accept,  or  to  receive,  will  not  supply  the  want  of  the  actual  re- 
ceipt of  the  statute.  Where  there  has  been  an  actual  receipt,  and 
no  notice  of  refusal  to  accept,  then  an  acceptance,  which,  as  we 
have  seen,^  may  be  either  express  or  implied,  may  be  fairly  pre- 
sumed where,  after  the  actual  receipt  of  the  goods,  there  has 
been  an  undue  holding  of  them  by  the  vendee  without  any  notice 
of  their  rejection. 

But,  —  where  the  sale  is  not  of  specific  goods,  so  as  in  itself  to 
imply  an  acceptance, —  in  the  absence  of  the  actual  receipt  re- 
quired ;  the  actual  change  of  possession,  manually,  constructively, 
or  symbolically ;  there  is  nothing,  in  the  absence  of  an  actual 
receipt,  from  which  even  the  presumption  of  an  acceptance  can 
arise,  to  say  nothing  of  the  want  also  of  the  actual  receipt.     The 

possession;  so  that,  where  the  whole  of  language  of  Ahlerson,  B.,  himself,  "is  not 

the  goods  are  claimed  to  have  been  de-  complete  until  the    party  has   precluded 

livered,  the  right  of  stoppage  in  transitu  himself  by  what  he  docs  from    objecting 

is  gone  ;  and,  on  the  other  hand,  such  an  to  the  quality  of  the  goods." 

acceptance,  where  the  actual  goods  which  ^  Supra,  p.  318  et  seq. 
have  been  accepted  are  received,  as,  in  the 


362  COMMENTARIES   ON   SALES.  [BOOK   IV. 

statute  prohibits  a  presumptive  receipt,  as  distinguished  from  an 
actual  receipt,  and  requires  an  actual  receipt,  i.  e.,  such  as  would 
ordinarily  be  an  actual  transfer  of  the  possession  at  common  law, 
which  there  was  not  in  Bushel  v.  Wheeler  or  in  Norman  v.  Phillips, 

The  distinction  here  between  the  delivery  to  a  carrier,  where 
the  actual  possession  (or  receipt)  is  not  in  the  vendee  so  long  as 
the  ri^-ht  of  stoppage  in  transitu  remains,  and  the  delivery  to  a 
servant,  which,  in  effect,  is  the  actual  receipt  of  the  vendee,  is 
marked.  In  the  latter  case  there  must  be  a  prompt  rejection, 
virtually  the  same  as  where  the  actual  delivery  has  been  made  to 
the  vendee ;  or  an  acceptance,  after  an  undue  lapse  of  time,  may 
fairly  be  presumed.  But,  in  the  case  of  the  carrier,  where  there 
has  been  no  actual  receipt  by  the  vendee,  a  fortiori  where  there 
has  been  an  express  refusal  to  receive  from  the  carrier,^  there  being 
neither  acceptance  nor  receipt,  there  is  nothing  whatever  in  the 
absence  of  receipt  from  which  an  acceptance  ci^n  be  presumed  or 
implied.  And  hence,  in  the  absence  of  an  actual  receipt,  there  is 
no  necessity  of  notice ;  for  nothing  has  taken  place  from  which 
an  acceptance  can  be  presumed.  And  even  if  there  had  been,  in 
the  absence  of  the  actual  receipt,  the  requirements  of  the  statute 
would  still  be  unmet. 

The  court,  unanimously,  made  the  rule  absolute,  Alderson,  B., 
in  delivering  his  judgment,  saying :  "  The  true  rule  appears  to  me 
to  be  that  acceptance  and  delivery  under  the  Statute  of  Frauds 
means  \_sic,  showing  the  confounding  of  accepting  with  receipt] 
such  an  acceptance  as  precludes  the  purchaser  from  objecting 
to  the  quality  of  the  goods ;  as,  for  instance,  if  instead  of  sending 
the  goods  back,  he  keeps  or  uses  them.  Here  the  goods  were 
not  in  the  possession  of  the  party  himself,  though  the  same  rule 
would  hold  if  they  were  delivered  to  a  general  agent,  or  to  a  party 
who  is  authorized  by  him  to  examine  the  quality  of  the  goods. 
But  the  carrier  is  only  an  agent  for  the  purpose  of  carrying 
[This  is  thoroughly  accurate.  He  is,  qud  carrier,  not  the  agent 
of  the  vendee  either  for  accepting  or  actually  receiving  the  goods 
under  the  statute.  Of  course  this  has  no  application  where,  under 
the  statute,  there  have  been  acceptance  of  the  goods,  and  an  actual 
delivery  and  actual  receipt  by  the  vendee  by  a  delivery  to  him,  or 

1  In  Norman  v.  Phillips,  14  M.  &  W.  to  receive  the  goods  from  the  carrier  was 

at  p.  282,  a  doubt  is  expressed  by  Alder-  both  admissible  and  material.     So  long  as 

son,  B.,  as  to  the  materiality  of  the  evi-  the  possession  of  the  goods  was  in  the 

dence  that  the  defendant  refused  to  receive  carrier  he  was  the  agent  of  the  shipper  to 

the  goods  from  the  carrier.     This  doubt  deliver  them  ;  and,  "therefore,  evidence  of 

evidently  arises  from  the  failure  to  notice  the  refusal  to  receive  the  goods  from  the 

the  distinction  between  refusing  to  receive  carrier  was  evidence  of  refusing  to  receive 

the  goods  and  a  refusal  to  accept  them,  them   from    the    shipper,  —  the  vendor  ; 

within  the  meaning  of  the  statute.     We  and,  therefore,  that  there  was  no  actual 

think  the  evidence  of  the  vendee's  refusal  receipt  of  them  under  the  statute. 


PART    VI.]  THE    ACCEPTANCE.  363 

to  his  agent  or  servant,  or  to  his  own  ship.  Or  there  may  be  in 
the  latter  case  an  actual  receipt  and  no  acceptance.]  ;  and  here 
the  purchaser  himself  immediately  refused  to  take  the  goods.  If 
a  carrier  is  not  originally  an  agent  to  accept  [?  receive.  He  is, 
in  fact,  as  carrier,  neither  an  agent  to  receive  or  accept.]  the 
goods,  he  cannot  be  made  so  by  mere  lapse  of  time."  The  other 
judges  concm-red  in  the  decision.  Alderson,  B.,  said  further: 
"  If  it  had  not  been  for  the  case  of  Bushel  v.  Wheeler  I  should 
have  said  there  was  no  evidence  whatever  for  the  jury  of  accept- 
ance." The  rest  of  the  court  were  evidently  of  the  same  opinion 
of  the  unsoundness  of  the  decision  of  that  case,  and  so  far  as  the 
Court  of  Exchequer  could  reverse  a  decision  of  the  Court  of 
Queen's  Bench,  Bushel  v.  Wheeler  ^  is,  in  effect,  declared  not  law 
by  Norman  v.  Phillips ;  ^  which  latter  case,  though  there  is  not  in 
it,  even,  an  exact  appreciation  of  the  difference  between  the  ac- 
cepting and  the  actual  receipt  of  the  statute,  is  much  more 
intelligently  decided  than  is  the  former  utterly  untenable  case. 

Benjamin  incorrectly  says,^  and  with  him,  with  similar  incor- 
rectness, concur  many  of  the  law  writers,  both  English  and  Amer- 
ican *  (even  that  usually  extremely  accurate  writer,  Blackburn, 
sharing  in  the  mistake),  —  "  It  is  settled  that  the  receipt  of  goods 
by  a  carrier  or  wharfinger  appointed  by  the  purchaser  does  not 
constitute  an  acceptance,  these  agents  having  authority  onli/  to 
receive,  not  to  accept  the  goods  for  their  employers.  ...  It  is  well 
settled  that  the  delivery  of  goods  to  a  common  carrier,  a  fortiori 
to  one  specially  designated  by  the  purchaser  for  conveyance  to  him 
or  to  a  place  designated  by  him,  constitutes  an  actual  receipt  by 
the  purchaser.  In  such  cases,  the  carrier  is,  in  contemplation  of 
law,  the  bailee  of  the  person  to  whom,  not  by  whom,  the  goods  are 
sent,  the  latter  in  employing  the  carrier  being  considered  as  an 
agent  of  the  former  for  that  purpose.  It  must  not  be  forgotten 
that  the  carrier  only  represents  the  purchaser  for  the  purpose  of 
receiving,  not  accepting  the  goods.  The  law  in  the  United  States 
is  the  same  :  Cross  v.  O'Donnell,^  Caulkins  v.  Hellman."  ^ 

This,  we  think,  will  be  evident,  from  what  we  have  written,  to 
be  palpably  unsound.  The  mistake  arises,  clearly,  from  the  fail- 
ure in  so  many  of  the  English  cases  relied  on  by  the  text-writers, 

1  8  Jur.  532.  *  919  ;    and  Campb.    on  Sales,    184-186. 

2  14  M.  &  W.  277.  The  authority  of  a  carrier  qua  carrier  is  to 

3  Benj.  on  Sales,  §§  160,  181.  cany  and  deliver,  not  to  "accept"  and 
*  For  some   of  them,  see    Blackb.  on  "  actually  receive "  for  the  vendee.    Other 

Sales,  2d  ed.  17,  22;  Br.  on  St.  of  Fr.  questions  arise  out  of  bills  of  lading,  which 

§§  327  b,  328  ;  Wood  on  St.  of  Fr.  558  ;  we  consider  in  a  later  volume  of  this  work, 

3   Pars,    on  Con.   7th  ed.    53,  54  ;   *  47,  in  discussing  the  subject  of  sloj}page  in 

*  48  ;   Ch.  on  Con.   9th  ed.  374  ;    New-  transitu. 

mark  on  Sales,  §  285.     But  see,  contra,  ^  44  N.  Y.  661, 

2  Add.  on  Con.  8th  ed.  433-435  ;  *  918,  «  47  N.  Y.  449. 


364  COMMENTARIES   ON   SALES.  [bOOK   IV. 

to  give  due  effect  to  the  terms  in  the  statute,  accept  and  actually 
receive;  the  statute  implying  that  some  part  of  the  goods  pur- 
chased shall  not  only  be  accepted  by  the  buyer  as  the  very  subject 
of  the  contract,  but  that  there  shall  be  an  actual  transfer  of  the 
possession  ;  which  change  of  possession  must  be  an  actual  change, 
though  to  effect  such  transmission  the  delivery  may,  as  usually  at 
common  law,  be  manual,  constructive,  or  symbolical.  The  carrier, 
then,  quel  carrier,  is  neither  the  agent  of  the  vendee  to  accept,  or 
actually  receive  the  goods  under  the  statute ;  but  is  simply,  as 
was  held  by  the  Court  of  Exchequer,  in  Norman  v.  Phillips,^  as 
expressed  by  Alderson,  B., "  only  an  agent  for  the  purpose  of  car- 
rying." And,  therefore,  as  long  as  the  carrier  holds  the  goods 
as  carrier,  and  the  goods  have  not  come  into  the  actual  possession 
of  the  vendee  (such  possession  being  either  manual,  constructive, 
or  symbolical),  and  the  right  of  stoi^page  in  transitu  still  continues 
to  exist  with  reference  to  them,  so  long,  we  think,  it  is  clear  there 
has  been  no  such  actual  receipt  of  them,  —  much  less  from  that 
fact,  any  implication  arising  of  that  entirely  different  thing,  the 
acceptance  of  the  statute,  —  which  furnishes,  with  the  acceptance, 
the  evidence  to  make  the  contract  be  deemed  "  good,"  under  the 
requirements  of  the  seventeenth  section  of  the  Statute  of  Frauds. 
The  carrier,  as  such,  is  in  no  sense  the  agent  of  the  vendee, 
either  to  accept  or  actually  receive  under  the  statute.  The  fact 
that  the  vendee  instructs  the  vendor  to  ship  the  goods  by  a  par- 
ticular route  or  by  a  named  carrier,  does  not  make  the  carrier  his 
agent,  either  to  accept  them  or  to  take  the  actual  receipt  or  posses- 
sion of  them  for  him,  under  the  statute.  The  carrier  becomes  the 
shipper's  agent  to  receive,  carry  and  deliver  the  goods.  After  the 
goods  are  received  by  the  carrjer  to  be  carried,  they  still  remain 
at  the  disposition  and  under  the  control  of  the  shipper,  who  can 
direct  them,  then,  at  his  will ;  clearly  showing  that  the  receipt  is 
for  him.  Again,  he  may  consign  them  to  a  particular  person ; 
but  that  person,  therefore,  is  not  bound  to  accept  the  consignment. 
The  consignee  may  refuse  to  accept  the  goods  or  pay  the  freight ; 
in  which  case,  clearly,  the  property  remains  in  the  shipper,  and  his 
goods  are  liable  for  the  freight ;  the  consignee,  except  by  his  own 
will,  having  no  such  liability  imposed  upon  him  by  the  act  of  the 
consignor.  But  when,  at  the  place  of  shipment,  the  goods  are  de- 
livered, by  the  authority  of  the  vendee,  to  his  agent,  or  to  his  ship, 
so  that  there  is  an  actual  transmutation  of  the  property  and  pos- 
session in  and  to  him,  so  that  the  vendor's  possession,  control, 
lien,  and  right  of  stoppage  in  transitu  are  gone  ;  then,  and  not  till 
then,  we  think,  —  outside  of  the  question  of  acceptance  and  actual 

1  14  M.  &  W.  277. 


PART    VI.]  THE    ACCEPTANCE.  365 

receipt  of  a  "  part  of  the  goods,"  —  are  the  requirements  of  the 
statute  met  as  to  the  actual  receipt  required  under  the  statute  ; 
the  acceptance,  even  then,  where  the  facts  do  not  show  an  accept- 
ance as  well  as  an  actual  receipt,  being  still  open  until  exercised 
by  the  vendee,  expressly  or  impliedly. 

In  Chapman  v.  Morton,^  which  was  a  case  of  sale  by  sample,  the 
defendant,  after  the  receipt  of  the  goods,  on  examination  of  them, 
claimed  that  they  were  not  according  to  sample,  and  notified 
the  vendors  that  he  repudiated  the  sale  ;  but,  subsequently  adver- 
tised the  goods  for  sale  in  his  own  name,  and  sold  them  in  his  own 
name.  In  an  action  for  the  price  of  the  goods,  as  goods  sold  and 
delivered,  the  court  held  that,  notwithstanding  the  vendee's  notice 
of  rescission,  he,  in  thereafter  treating  them  as  his  own,  had  ac- 
cepted them.  This  case,  though  not  under  the  Statute  of  Frauds, 
is  applicable ;  the  acceptance  here  being  exactly  the  acceptance 
of  the  statute.^ 

Where  an  order  for  goods  made,  and  for  others  to  be  made, 
forms  one  entire  contract,  acceptance  of  the  former  goods  will  take 
the  case  out  of  the  statute  as  regards  the  latter  also.^ 

In  Lilly  white  v.  Devereux,*  the  court  held,  that  if  the  conduct 
of  a  defendant  in  dealing  with  goods  already  in  his  possession,  is 
wholly  inconsistent  with  the  supposition  that  he  has  not  the  pos- 
session as  owner,  —  as  if  he  sells  or  attempts  to  sell  the  goods,  or 
if  he  disposes  absolutely  of  the  whole  or  any  part  of  them,  or  at- 
tempts to  do  so,  or  alters  the  nature  of  the  property,  or  the  like, 
—  he  may  be  properly  said  to  have  accepted  and  actually  received 
such  goods,  so  as  to  take  the  case  out  of  the  Statute  of  Frauds, 
where  there  has  been  a  contract  under  which  he  has  held  the  goods 
in  possession.  But,  in  this  case,  where  A.,  being  himself  yearly 
tenant  of  a  house  to  B.,  under-let  the  house  and  furniture  at  a 
weekly  rent  to  C,  A.,  being  desirous  of  getting  rid  of  his  tenancy 
at  the  end  of  the  current  year,  offered  to  sell  the  furniture  to  C. 
for  £50  ;  which  C.  thought  too  much,  but  verbally  agreed  to  have 
it  valued,  and  to  pay  so  much  as  it  should  be  found  worth,  on  B.'s 
agreeing  to  accept  him  as  his  tenant  instead  of  A.     The  furniture 

1  11  M.  &  W.  534.  ou  account  of  the  vendee,  on  the  wrongful 

*  See  farther,  as  to  dealing  with  goods  repudiation   of  the  goods  by  the  latter, 

being  an  acceptance  of  them,  by  the  ven-  Sands  v.  Taylor,  5  Johns.  395  ;  Girard  v. 

dee,    after   his   actual   receipt,    Street    v.  Taggart,  5  S.  &  R.  19. 

Blay,  2  B.  &  Ad.  456  ;  Horncastle  v.  Far-  ^  g^ott   v.   The  Eastern   Counties  Ry. 

ren,  3  B.  &  Aid.  497  ;   Parker  v.  Palmer,  Co.,  12  M.  &  W.  33  ;   iMills  v.  Hunt,  17 

4  B.  &  Aid.   387  ;  Campbell  v.   Fleming,  Wend.  333  ;    20  Wend.   431  ;    Baldey  v. 

1  A.  &  E.  40  ;  Hunt  i;.  Silk,  5  East,  449  ;  Parker,  2   B.   &  C.  37  ;   Sliirley  v.   Hey- 

Coleman  v.    Gibson,   1   M.  &  Rob.    168;  ward,  2  H.  Bl.  509;  Elliott  v.  Thomas,  3 

Healey  v.   Utly,    1   Cow.   345  ;  Lawrence  M.  &  W.  170. 

V.  Dale,  3  Johns.  Ch.  23,  42.     And  as  to  «  15  M.  &  W.  285,  291. 

the  right  of  the  vendor  to  resell  the  goods 


366  COMMENTARIES   ON   SALES.  [BOOK   IV. 

was  valued  at  X80,  which  C.  refused  to  give,  but  then  offered  the 
^£50.  Before  the  expiration  of  the  year,  an  agent  of  A.  took  the 
key  out  of  the  door  and  gave  it  to  C,  telling  him  that  he  must 
settle  with  A.  himself  about  the  furniture.  B.  refused  to  accept 
C.  as  his  tenant,  and  he  continued  to  occupy  the  house  and  use 
the  furniture  as  before,  but  continually  giving  notice  to  A.  to  take 
away  the  furniture,  which  he  refused  to  do  ;  and  after  a  lapse  of 
three  months,  C.  sent  it  to  a  place  of  deposit,  and  notified  A.  It 
was  held,  on  these  facts,  that  there  was  no  evidence  of  an  accept- 
ance by  C.  of  the  furniture,  under  a  contract  of  sale,  to  satisfy 
the  statute. 

Farina  v.  Home^  is  another  case  where  Bushel  v.  Wheeler  ^ 
was  relied  on,  and  where  again  the  Court  of  Exchequer  refused 
to  follow  the  principle  of  that  case,  and  where  the  clear  distinc- 
tion which  we  have  taken  as  between  the  acceptance  and  the 
actual  receipt  of  the  statute  (and  which  in  so  many  cases  in 
the  English  Court  of  Queen's  Bench  has  been  singularly  ignored) 
is  sustained.  The  case,  too,  in  effect,  like  Norman  v.  Phillips,^ 
is  opposed  in  principle  to  the  doctrine  laid  down  by  Benjamin 
and  other  writers,*  as  to  the  carrier,  qud  carrier  (and  if  carrier, 
then  warehouseman),  being  the  agent  of  the  vendee  to  actually 
receive  the  goods  to  satisfy  the  statute. 

Tiie  case  of  Farina  v.  Home  was  an  action  for  goods  sold  and 
delivered.  The  defendant,  residing  in  London,  verbally  ordered 
from  the  plaintiff  at  Cologne,  in  July,  1845,  goods  for  the  price 
of  X15,  to  be  shipped  to  the  defendant.  The  goods  were  ac- 
cordingly sent  by  the  plaintiff  to  his  shipping-agent  in  London, 
named  Brenchley,  who  received  them,  and  warehoused  them  with 
one  Barber  (a  wharfinger),  at  the  same  time  informing  the  de- 
fendant of  their  arrival.  On  receipt  of  the  goods,  Barber  handed 
to  Brenchley  a  delivery  warrant,  dated  21st  July,  whereby  they 
were  made  deliverable  to  Brenchley  or  his  assignee  by  indorse- 
ment, on  payment  of  rent  and  charges  from  the  25tli  of  July. 
Brenchley  forthwith  indorsed  and  sent  it  to  the  defendant,  who 
kept  the  warrant  for  about  ten  months,  and,  although  repeatedly 
applied  to  to  pay  the  price  of  and  charges  on  the  goods,  he  did 
not  do  so ;  and  he  refused  also  to  give  back  the  warrant,  saying 
that  he  had  sent  it  to  his  solicitor,  and  that  he  intended  to  defend 
the  action,  for  he  had  never  ordered  the  goods,  adding  that  they 
would  remain  for  the  present  in  bond.  The  statute  being  relied 
on,  the  question  was  left  to  the  jury  whether  the  defendant  had 
accepted  and  actually  received  the  goods  ;  the  court  directing  the 

1  16  M.  &  W.  119.  8  14  M.  &  W.  277. 

2  9  Jur.  532.  4  gee  ante,  p.  363. 


PART    VI.]  THE    ACCEPTANCE.  367 

jury  that,  to  amount  to  this,  the  acts  of  the  vendee  must  show 
his  intention  of  taking  possession  of  the  goods  as  owner.  The 
jury  found  for  the  plaintiff  for  <£16  lis.  The  Court  of  Ex- 
chequer set  aside  the  verdict,  and  ordered  a  new  trial.  Parke, 
B.,  in  delivering  the  unanimous  judgment  of  the  court,  said, 
"  On  a  motion  for  a  new  trial  we  intimated  our  opinion  that  there 
was  evidence  to  go  to  the  jury  of  the  defendant's  acceptance  of 
the  goods  by  retaining  the  delivery  warrant ;  but  defendant's 
counsel  insisted  that  there  was  no  sufficient  evidence  of  the  actual 
receipt  of  the  goods,  that  is,  the  deliver^/  of  the  possession  of 
the  goods  on  behalf  of  the  vendor  to  the  vendee,  and  the  receipt 
of  the  possession  by  the  vendee ;  and  that  the  delivery  and  re- 
ceipt of  the  warrant  was  not  in  effect  the  same  thing  as  the 
delivery  and  receipt  of  the  goods  ;  and  we  are  all  of  that  opinion. 
That  warrant  is  no  more  than  an  engagement  by  the  wharfinger 
to  deliver  to  the  consignee  or  any  one  he  may  appoint ;  and  the 
wharfinger  holds  the  goods  as  the  agent  of  the  consignee  ^  (who  is 
the  vendor's  agent),  and  his  possession  is  that  of  the  consignee 
until  an  assignment  has  taken  place  and  the  wharfinger  has 
attorned,  so  to  speak,  to  the  assignee,  and  agreed  with  him  to 
hold  for  him.  Then,  and  not  till  then,  the  wharfinger  is  the 
agent  or  bailee  of  the  assignee,  and  his  possession  that  of  the  as- 
signee, and  then  only  is  there  a  constructive  delivery  to  him.  In 
the  mean  time  the  warrant,  and  the  indorsement  of  the  warrant, 
is  nothing  more  than  an  offer  to  hold  the  goods  as  the  warehouse- 
man of  the  assignee.^  We  all,  therefore,  think  that  though 
there  was  sufficient  evidence  of  the  acceptance,  if  the  goods  had 
been  delivered  to  the  defendant,  there  is  none  of  the  receipt ;  and 
therefore  there  must  be  a  new  trial."  ^     The   distinction,   even 

^  "  Consignor  "  is  the  word  used  here  ;  are  in  the  possession  of  the  carrier,  — •  qua 

but  the  context  shows  this  is  a  mistake,  carrier,  —  his  possession  being  a  continu- 

The  very  next  words  show  this  :   "  Who  is  ance  of  that  of  the  vendor  until  the  goods 

the  vendor's  agent,"  the  vendor  being  the  have  come  into  the  actual  or  constructive 

consignor,  and  his   agent   the  consignee,  possession  of  the  vendee,  so  as  to  extin- 

The  correction  is  a  material  one  to  the  guish  the  right  of  stoppage  in  transitu. 

argument  and  sense.     The  next  use  of  the  But  in  Bushel  v.  Wheeler,  8  Jur.  532,  and 

word  "  consignee  "  we  have  quoted  is  cor-  Norman  v.  Phillips,  14  M.  &  W.  277,  there 

rect  in  the  text  of  the  report.  seems  not  to  have  been  any  bill  of  lading 

2  Precisely  as  is  the  bill  of  lading  "  an  or  warehouse  warrant   transferred  ;   and, 

offer  to  hold  the  goods"  for  the  consignee  therefore,  there  was  not,  as  in  Farina  v. 

where  there  is  a  bill  of  lading.     And  as,  Home,  16  M.  &  W.  119,  even  a  transfer 

in  the  case  of  the  warehouseman,  until  of  the  indicia  of  possession,  much  less  of 

there  has  been  an  actual  delivery  of  the  the  possession  itself,  which,  as  a  continu- 

goods  by  their  manual  transfer,  or  a  con-  ance  of  the  vendor's  j)ossession,  really  re- 

structive  delivery  by  such  "attornment,"  maincd  in  the  vendor.     Farina  v.  Home, 

the  lien  of  the  vendor  continues  in  the  therefore,  in  this  respect,  goes  even  farther 

right  of  stoppage  in  transitu,  and  the  ac-  than    Bushel   v.  Wheeler,  or  Norman    v. 

tual  receipt  of  the  goods  and  their  actual  Phillips,  though  in  principle  in  entire  ac- 

or  constructive  possession  are  not  in  the  cord  with  the  holding  in  the  latter  case, 
vendee ;  so  equally  is  it  where  the  goods  ^  And  see  I>ill  v.  Bami'ut,  9  M.  &  W. 


368  COMMENTARIES   ON   SALES.  [BOOK   IV. 

here,  between  "  acceptance  "  and  "  receipt "  is  not  as  clear  as  it 
would  be  if  these  terms  were  not  so  generally  confounded  as  they 
are  in  the  cases. 

In  Walker  v.  Nussey,^  which  was  an  action  for  goods  sold  and 
delivered,  the  goods,  having  been  actually  received  by  the  defend- 
ant were  returned  within  two  days  of  their  receipt  as  inferior 
to  sample,  and  the  jury  having  found  that  they  were  returned  in 
a  reasonable  time,  and  that  there  was  therefore  no  acceptance  of 
the  goods  to  take  the  case  out  of  the  statute,  the  verdict  was 
sustained-  The  presumption  in  this  case  would  seem  to  be  that 
the  goods  were  not  equal  to  sample,  and  were  therefore  properly 
rejected,  —  not  being  the  goods  which  were  purchased,  and  which 
by  the  purchase  by  sample  were  agreed  to  be  taken  as  the  sub- 
ject of  the  purchase  if  they  conformed  to  the  sample.  See  the 
latter  portion  of  this  Part,  where  the  effect  of  a  sale  by  sample, 
as  in  itself  an  acceptance  where  the  bulk  conforms  to  the  sample, 
is  considered. 

There  is  an  intimation  by  Maule,  J. ,2  in  Beaumont  v,  Brengeri,^ 
during  the  argument  of  the  case,  that  there  might  be  an  actual 
transfer  of  the  possession  or  an  actual  receipt  of  the  goods 
under  the  statute,  and  yet  the  vendor  retain  his  lien  for  the  price. 
But  the  decision  itself  is  inconsistent  with  that  view.  The 
case  was  one  where  it  was  held  that  the  dealing  with  a  carriage 
was  sufficient  to  show  an  acceptance  and  actual  receipt  of  it, 
even  though  it  remained  in  the  custody  of  the  vendor.  The 
ground  upon  which  the  decision  was  based  was  that  the  vendor 
had  ceased  to  hold  the  carriage  as  owner,  and  merely  held  it  as  a 
warehouse-keeper  for  the  vendee.  Having  ceased  to  be  owner, 
and  retaining  "  possession  merely  in  the  character  of  agent "  (as 
it  was  held  in  the  case  that  he  did),  with  his  possession  as  owner 
his  lien  as  owner  was  necessarily  gone. 

Lord  Denman,  C.  J.,  in  Curtis  v.  Pugh,*  again  shows  the  con- 
fusion of  his  mind  in  reference  to  the  terms  "  acceptance  "  and 
"  actual  receipt "  of  the  statute.     In  the  case  tried  before  him, 

36;  Hanson  v.  Armitage,  5  B.  &  Aid.  557;  the  shipper  may  direct.     As  between  the 

Howe  V.  Palmer,  3  B.  &  Aid.  321  ;  Ben-  vendor  and  vendee,  the  carrier's  duty,  in 

tall  V.  Burn,  3  B.  &  Cr.  423 ;  Zroniger  v.  their  delivery  by  the  ship,  is  to  deliver 

Samuda,  7  Taunt.  265.     And  see  the  nisi  them  for  the  shipper  (who  can  direct  them 

lirius  case  of  Gorman  v.  Boddy,  2  C.  &  K.  as  he  pleases),  not  to  receive  them  for  the 

145,  which  was  a  case  of  the  shipment  of  consignee,  who,  at  the  time  of  the  receipt, 

goods  by  a  carrier  named  by  the  vendee  ;  is  usually  unknown  to  the  carrier.     After 

and  although  Cresswell,  J.,  intimates  that  the  shipment  of  the  goods  the  shipper,  by 

there  might  be  a  delivery  to  the  carrier  as  the  bill  of  ladmg,  can  control  them  at 

the  defendant's  agent,  he  refers  to  the  pos-  will, 

session  of  the  goods  as  being  in  the  carrier.  i  16  M.  &  W.  302. 

As  a  general  rule,  the  carrier  in  receiving  2  ^^  p_  303, 

goods  receives  them  for  the  shipper,  his  ^  5  c.  B.  301. 

duty  being  to  carry  and  deliver  them  as  *  10  Q.  B.  111. 


PART   VI.]  THE   ACCEPTANCE.  369 

notwithstanding  the  jury  found  that  the  defendant  had  not  dealt 
with  the  goods  so  as  to  make  them  his  own,  and  had  done  no 
more  than  was  necessary  for  an  examination  of  their  quality,  a 
verdict  was  entered  for  the  plaintiff ;  leave  being  reserved  to 
enter  a  nonsuit.  The  court  above,  including  Lord  Denman  him- 
self, were  unanimous  for  a  nonsuit.  In  this  case  there  was  an 
actual  receipt ;  but  the  evidence  showed  a  rejection  of  the  goods 
after  their  actual  receipt.  Lord  Denman  said,  "  There  must  be 
both  a  delivery  and  an  acceptance.  Here  the  evidence  showed 
a  rejection."  That  is,  in  this  case,  there  was  an  actual  receipt  of 
the  whole  of  the  goods,  but,  in  addition  to  that,  there  must  be  an 
acceptance  of  them  ;  namely,  an  approval,  —  a  taking  to  them  as 
the  subject  of  the  contract.  Patteson,  J.,  says,  "  If  he  had  looked 
them  over  and  selected  them  long  before,  and,  when  they  came  to 
his  warehouse,  had  refused  to  have  them,  that  would  not  be  a 
case  of  goods  sold  and  delivered."  No !  nor  would  it  answer 
the  requirements  of  the  statute.  It  would  be  an  acceptance  of 
the  goods  under  the  statute,  but  a  refusal  to  receive  them, 
—  the  exact  converse  of  the  actual  receipt  required.  And, 
again,  Patteson,  J. :  "A  confusion  sometimes  arises  in  applying 
the  Statute  of  Frauds  to  the  case  of  goods  sold  and  delivered. 
If  the  purchaser  actually  takes  the  goods  into  his  possession, 
that  is  an  acceptance  [the  meaning  of  this  is  a  little  indefinite] 
independent  of  the  statute  ;  but  there  may  be  an  acceptance 
sufficient  to  satisfy  the  statute,  which  may  yet  not  support  an 
action  for  goods  sold  and  delivered." 

If  by  this  is  meant,  which  we  scarcely  think  it  is,  that  as  the 
acceptance  is  an  independent  entity  from  the  actual  receipt  of  the 
statute,  there  may  be  an  acceptance  without  an  actual  receipt;  and, 
therefore,  that  there  may  be  an  acceptance  unaccompanied  by  a 
delivery,  without  which  latter  the  action  for  goods  sold  and  deliv- 
ered will  not  lie,  then  this  exactly  accords  with  our  whole  conten- 
tion in  this  Part.  But  this  distinction  is,  as  we  have  shown,  one 
that  has  been  entirely  lost  sight  of  in  the  Court  of  Queen's  Bench 
in  an  immense  number  of  cases ;  and  we  doubt  if  this  was  the  mean- 
ing of  Patteson,  J.,  in  this  instance.  If  the  language  is  used  in  the 
sense  that  there  may  be  an  acceptance  and  actual  receipt  to  satisfy 
the  statute,  and  yet  not  be  sufficient  to  sustain  a  count  for  goods 
sold  and  delivered,  then  we  answer :  Yes,  an  acceptance  and 
actual  receipt  of  some  "  part  of  the  goods  so  sold  "  is  sufficient  to 
satisfy  the  very  language  of  the  statute  ;  and  even  a  sample,  if 
taken  out  of  the  very  bulk  of  the  goods  sold,  is,  as  we  have  seen 
supra,  a  sufficient  part.     But,  of  course,  this  will  not  sustain  a 

VOL.  II.  24 


370  COMMENTARIES   ON   SALES.  [BOOK   IV. 

count  for  goods  sold  and  delivered  for  the  whole  of  the  goods 
when  nothing  but  a  mere  sample  has  been  delivered. 

But,  we  think,  where  the  whole  of  the  goods  have  been  accepted 
and  actually  received  so  as  to  satisfy  the  statute,  then  the  action 
for  goods  sold  and  delivered  will  be  sustained,  and  no  exception 
whatever  to  this  rule,  which  we  have  not  found  stated  elsewhere 
in  text-book  or  cases,i  occurs  to  us.  We  do  not  say  that  the  con- 
verse of  this,  namely,  that  no  action  for  goods  sold  and  delivered 
can  be  sustained  unless  there  have  been  an  acceptance  and  actual 
receipt  under  the  statute  ;  that  is  a  question  which  we  i^itend  con- 
sidering in  subsequent  parts  of  this  work. 

There  are  cases  which  hold  that  the  action  for  goods  sold  and 
delivered  will  lie  where  there  is  a  contract,  as,  for  instance,  where 
there  has  been  a  memorandum  in  writing  of  the  contract,  or  a 
part  payment ;  and,  therefore,  where  there  have  been  an  accept- 
ance and  an  actual  receipt  of  a  part  of  the  goods  in  cases  where 
there  has  been  a  passage  of  the  property  by  an  assignment  of  the 
bill  of  lading,  so  that  an  action  for  an  injury  to  the  goods  would 
be  properly  brought  by  the  consignee.  In  such  cases  it  has  been 
held  that  the  action  as  for  goods  sold  and  delivered  would  lie,  and 
yet  that  the  receipt  of  the  carrier,  qua  carrier,  would  not  be  the 
actual  receipt  by  the  consignee  of  the  whole  of  tlie  goods,  where 
that  was  the  evidence  to  show  the  existence  of  a  contract  within 
the  Statute  of  Frauds.  The  cases  we  have  cited  in  tiiis  and  in  the 
next  succeeding  Part  clearly  establish  that  there  have  been  no 
acceptance  and  actual  receipt  of  the  whole  of  the  goods  to  satisfy 
the  statute,  so  long  as  the  vendor's  lien  or  right  of  stoppage  in 
transitu  intervenes  to  prevent  the  actual  transfer  of  the  possession 
to  the  vendee.  But  in  all  cases  where  the  whole  of  the  goods 
have  been  accepted  and  actually  received,  to  satisfy  the  statute,  an 
action  for  the  price  as  for  goods  sold  and  delivered  will  lie. 

But  we  have,  so  far,  found  no  case  where  it  has  been  claimed 
that  the  ivhole  of  the  goods  have  been  accepted  and  actually  re- 
ceived under  the  statute,  but  what,  if  that  were  sustained,  a  count 
for  goods  sold  and  delivered  should  also  be  held  to  lie.  We  sub- 
mit this  as  a  test,  to  which  no  exception  whatever  occurs  to  us ; 
and  on  principle  we  can  see  no  room  for  such  exception.     We 

1  In  Curtis  v.  Pugh,  10  Q.  B.  Ill,  it-  10  Q.  B.  Ill,  notwithstanding  the  holding 
self,  we  find  an  intimation  by  counsel,  in  in  tlie  case  to  the  contrary,  there  are  both 
reply  to  Patteson,  J. ,  which  points  in  an  acceptance  and  an  actual  receipt  of  the 
the  direction  we  have  indicated;  thus  (at  goods  within  the  meaning  of  the  statute, 
p.  114):  "The  plaintiff  here  does  not  rely  See  Bog  Lead  Minin;,'  Co.  v.  Mont^igue,  10 
on  an  acceptance  of  part.  The  ivhole  quan-  C.  B.  n.  s.  481;  Cusack  v.  Robinson,  1  B. 
tity  of  goods  is  put  into  his  hands  ;  and  k  S.  299.  And  see  the  (piestion  fully  con- 
he  is  to  explain  why  he  does  not  pay  for  sidered,  supra,  in  this  and  in  the  next  suc- 
them.      We  think  that  in  Curtis  v.  Pugh,  ceeding  Part. 


A 


PART    VI.]  THE   ACCEPTANCE.  371 

repeat,  where  there  have  been  no  acceptance  and  actual  receipt  of 
a  part  of  the  goods,  and  it  is  chiimed,  as  in  Bushel  v.  Wheeler,^  in 
Norman  v.  Phillips,^  and  in  many  other  cases,  that  there  have 
been  an  acceptance  and  actual  receipt  of  the  whole  of  the  goods,  if 
an  action  as  for  goods  sold  and  delivered  will  not  lie,  then  the 
requisites  of  the  statute  with  respect  to  the  acceptance  and  actual 
receipt  have  not  been  met.  And  while  we  have  nowhere  met  with 
this  test  stated,  no  possible  case  even  of  an  exception  to  this  rule 
occurs  to  us,  and  we  think  the  test  in  the  precise  terms  in  which 
we  have  stated  it  is  an  infallible  one.  So,  again,  on  the  same 
principle,  where  the  whole  of  the  goods  have  been  accepted  and 
actually  received,  the  vendee  becomes  the  absolute  owner,  and  can 
maintain  trover  for  the  goods.^ 

The  case  of  Curtis  v.  Pugh*  is,  unlike  nearly  all  the  cases  in 
the  Queen's  Bench  (resulting  from  their  improperly  confounding 
the  accepting  and  the  actual  receiving  of  the  statute,  as  though 
these  terms  were,  in  effect,  synonymous),  a  valuable  one,  whether 
rightly  or  wrongly  decided,  on  the  question  of  the  acceptance  un- 
der the  statute,  independent  of  the  actually  receiving  thereunder. 
This  was  a  sale  of  two  hogsheads  of  glue,  which  the  defendant, 
the  vendee,  actually  received  in  his  own  warehouse,  and  which,  as 
the  jury  found,  accorded  with  the  description  of  glue  bought  by 
him.  He  unpacked  the  whole  of  the  glue  and  put  it  into  twenty 
bags,  and  then,  claiming  that  the  glue  was  inferior,  refused,  in  tbe 
words  of  the  case,  to  "  accept "  it.  The  plaintiff"  refused  to  take 
the  glue  back  because  it  had  been  unpacked  and  put  into  bags. 
The  defendant  repacked  the  whole  and  sent  it  back  to  the  plain- 
tiff, who  refused  to  receive  it.  It  was  in  evidence  that  it  was  un- 
necessary to  do  more  than  take  a  cake  or  two  out  for  the  purpose 
of  examining  the  contents  of  the  hogsheads,  and  also  that  glue,  if 
taken  out  of  the  casks  in  which  it  is  packed,  cannot  be  replaced 
there  in  the  same  condition.  The  jury  having  found  that  the  de- 
fendant had  not  dealt  with  it  so  as  to  make  it  his  own,  nor  done 
more  than  was  necessary  for  an  examination  of  the  quality,  the 
court  held  that,  on  this  finding,  the  plaintiff  should  have  been  non- 
suited ;  Coleridge,  J.,  interrogatively  laying  down  the  principle 
that,  if  the  party  examines  the  goods  bond  fide  with  a  view  of 
ascertaining  the  quality,  but  so  carelessly  as  to  do  them  great 
harm,  that  does  not  amount  to  an  acceptance,  whatever  be  the  re- 
sult of  the  examination. 

While  we  think  that  that  which  is  above  laid  down  in  Curtis  v. 

1  8  Jnr.  532.  '^  See   Saunders  v.  Topp,  4    Ex.   390, 

2  14  M.  &  W.  277.  stated  infra. 

*  10  Q.  B.  111. 


372  COMMENTARIES    ON   SALES.  [bOOK   IV. 

Pugh  1  is  correct  as  to  the  general  doctrine  of  acceptance,  where 
floods  wliicli  have  been  actually  received  are  promptly  rejected, 
showino-  that  in  such  case  there  is  no  acceptance,  but  its  opposite, 
a  rejection,  we  are  more  than  doubtful  as  to  the  soundness  of  the 
decision  of  the  case  itself  outside  of  one  point  which  is  not  taken 
in  the  case.  The  purchase  was  here  virtually  of  specific  goods, 
"  Cox's  best  glue,"  and  the  glue  was  rejected  because  it  was 
alleged  to  be  inferior.  But  the  jury  expressly  found  that  it  was 
not  inferior.  Hence  the  goods  were  the  exact  goods  which  the 
defendant  had  bought,  and  which,  by  the  act  of  specifying  and 
designating  them,  he  assented  to,  accepted,  recognized  as  the  very 
goods  which  he  had  purchased.  This,  we  think,  was  an  accept- 
ance of  them  within  the  meaning  of  the  statute,  and  that  after 
their  actual  receipt  tliey  could  not  be  rejected,  if  they  were  the 
very  goods  which  he  had  assented  to,  —  as  tlie  jury  in  this  case 
found  they  were,  —  as  the  very  subject  of  the  purchase.  We  think 
the  latest  cases  in  England  sustain  this  view.  See  our  examina- 
tion of  them  in  the  latter  portion  of  this  Part.^ 

A  doubt  was  expressed  in  the  Court  of  Exchequer  by  three  out 
of  the  four  judges  sitting  in  Saunders  v.  Topp,^  as  to  whether, 
under  the  statute,  "  there  can  be,"  in  the  language  of  one  of  them, 
"  an  acceptance  prior  to  the  receipt,"  or,  in  the  language  of  the 
others, "  an  acceptance  before  delivery."  *  Here  it  is  again  evident 
how  much  the  terms  "  acceptance,"  "  receipt  "  and  "  delivery  "  are 
confounded,  as  though  there  could  not  be  an  acceptance  without  a 
receipt ;  and,  as  has  been  the  case  so  often  in  the  Queen's  Bench, 
it  was  deemed  that  acceptance  merely  meant  receipt  without  re- 
jection, and  that  there  could  be  no  acceptance  which  was  not  in- 
volved in  the  receipt.  The  language  and  spirit  of  the  statute  are, 
however,  very  different.  The  provision  there  is,  as  we  have  seen, 
ad  nauseam,  that  the  vendee  must  accept  and  actually  receive, 
treating  the  acceptance  and  receipt  as  essentially  different,  and 
not  only  so,  but  clearly  implying  that  the  acceptance  may  be  made 
and  yet  never  be  followed  by  the  actual  receipt,  which  is  aim  neces- 
sary to  make  the  contract  be  deemed  good.  Parke,  B.,  with,  evi- 
dently, in  this  case,  a  better  appreciation  of  the  meaning  and 
force  of  the  statute  than  that  of  his  three  colleagues,  Alderson, 
Rolfe,  and  Piatt,  BB.,  was  clearly  not  a  sharer  in  their  doubts. 

10  Q.  B.  111.  such  an  acceptance:  in  the  former  case  ex- 

2  And  see  our  consideration  of  the  next  pressly  under  the  statute  of  frauds.     And 

case  we  state,   Saunders  v.  Topp,   4  Ex.  see  also  ;)rr  Lord  Caui]ibell,  C.  J.,  in  Mor- 

390.  ton  V.  Tihbett,  15  Q.  B.  428,  where  he  in- 

4  Ex.  390.  correctly  says  that  the  aco'ptance  cither 

*  See  Cusack  v.  Robinson,  1  B.  &  S.  preceded  or  "was  contemporaneous  with  the 

299  ;  The  Bos;  Lead  Mining  Co.  v.  Mon-  receipt.     It  may  be  either,  or  it  may  suc- 

tague,  IOC.  B.  n.  s.  481,  where  there  was  ceed  the  receipt. 


PART    VI. J  THE   ACCEPTANCE.  373 

He,  treating  the  acceptance  and  actual  receipt  of  the  statute  as 
essentially  different,  as,  notwithstanding  the  dreadful  confusion 
on  the  subject  pervading  the  English  cases,  they  unquestionably 
are,  says  :  "  At  common  law  the  property  would  pass  by  the  con- 
tract of  bargain  and  sale,  but  there  must  be  either  a  part  payment 
or  an  acceptance  and  receipt  of  the  goods."  And,  "  I  am  of 
opinion  that  there  was  evidence  for  the  jury  of  the  acceptance  and 
receipt.  ...  To  satisfy  the  Statute  of  Frauds  there  must  be  an 
acceptance  and  a  receipt  of  the  goods.  A  receipt  implies  de- 
livery." In  this  there  is  correct  appreciation  of  these  terms  ;  re- 
ceipt and  delivery  are  correlative  terms ;  acceptance  is  neither 
synonymous  with  receipt  nor  the  correlative  of  delivery. 

There  was,  in  Saunders  v.  Topp,i  an  unquestionable  acceptance, 
before  the  actual  receipt,  of  sheep  purchased  by  the  defendant 
from  the  plaintiff.  In  the  case,  the  defendant  went  with  the 
plaintiff  to  the  latter's  farm,  and  there  selected  from  the  flock 
forty-five  specific  couples  of  ewes  and  lambs,  which  he  bought  at 
40s.  a  couple,  and  directed  the  plaintiff's  shepherd  to  send  them 
to  his  (the  defendant's)  field,  at  another  place,  which  was  subse- 
quently done,  and  the  defendant  then  took  possession  of  them, 
and  removed  them  to  another  place.  The  acceptance  was  com- 
plete when  the  specific  sheep  were  selected  and  specifically  pur- 
chased; and,  with  the  subsequent  actual  receipt,,  supplied  the 
evidence  of  the  contract  of  sale  required  by  the  statute.^ 

With  the  forty-five  couple  of  sheep  so  accepted  other  sheep 
were  sent,  which  the  defendant  had  verbally  ordered,  but  had  not 
seen  nor  accepted,  as  he  had  done  the  forty-five  couple.  On  the 
actual  receipt  of  the  whole,  he  dealt  with  them  all  alike.  The 
court  nominally  held  that  his  dealing  with  them  then  as  he  did, 
was  then  an  acceptance  of  the  forty-five  couple,  but  not  of  the 
others.  But,  had  there  not  been  the  previous  acceptance  of  the 
forty-five  couple,  the  subsequent  acts  of  the  defendant  on  their 
"  actual  receipt "  would  have  been  no  more  an  acceptance  of  them 
than  of  the  other  sheep  which  he  then  actually  received,  but  had 
not  previously  accepted.  The  case  is  correctly  decided,  although 
much  of  the  reasoning  in  it,  by  Alderson,  Rolfe,  and  Piatt,  BB., 
who,  not  appreciating  the  meaning  of  the  statute,  questioned 
whether  there  could  be  an  acceptance  without  a  delivery  and 
receipt,  is  not  sound.^ 

1  4  Ex.  390.  then  agreed  to  buy  that  particular  thing, 

2  Browne  in  his  excellent  work  on  the  and  consequently  thereby  finally  recog- 
statute  (which  work  should  be  in  the  hands  nized  and  identified  it  as  the  ]tarticular 
of  all  the  English  and  American  judges)  thing  he  was  to  get,  will,  in  general,  be  a 
very  correctly  says  :  "Where  the  thing  sufficient  proof  of  an  acceptance  by  him." 
contracted  to  be  sold  is  defined,  specified,  Br.  on  St;it.  of  Frauds,  §  321  a. 

and  ascertained  at  the  time  of  the  y)nr-  ^  See  Cusack  v.  Robinson,  1  B.  &  S. 

chase,  proof  of  the  fact  that  the  buyer     308  ;  Bog  Lead  Mining  Co.  v.  Montague, 


374  COMMENTARIES   ON   SALES.  [BOOK   IV. 

The  case  of  Morton  v.  Tibbett ''  is  an  important  case  on  another 
phase  of  the  subject.  There,  Lord  Campbell,  C.  J,  in  delivering 
the  unanimous  judgment  of  the  court,  after  a  quite  full  examina- 
tion of  the  authorities,  concludes  "  that  there  may  be  an  accept- 
ance and  receipt  of  goods  by  a  purchaser,  within  the  Statute  of 
Frauds,  although  he  has  had  no  opportunity  of  examining  them, 
and  although  he  has  done  nothing  to  preclude  himself  from  object- 
ing that  they  do  not  correspond  with  the  contract." 

In  the  judgment,  Parke,  J.  (who  has  a  much  clearer  idea  of 
the  force  and  effect  of  the  clause  in  the  statute  relating  to  the 
meaning,  force,  and  effect  of  the  acceptance  and  actual  receipt  of 
the  statute  than  most  of  the  English  judges ;  although  even  he, 
as  we  shall  see  in  our  comments  on  this  case,  is  not  entirely  accu- 
rate), is  quoted  as  saying  in  Smith  v.  Surman^  as  follows:  "The 
later  cases  have  established,  that  unless  there  has  been  such  a 
dealing  on  the  part  of  the  purchaser  as  to  deprive  him  of  any 
right  to  object  to  the  quantity  or  quality  of  the  goods,  or  to  de- 
prive the  seller  of  his  right  of  lien,  there  cannot  be  any  part 
acceptance."  To  which  Lord  Campbell  adds :  "  That  there  can  be 
no  acceptance  and  receipt  by  the  purchaser  while  the  lien  of  the 
vendor  remains-  is  clear  enough.,  for  the  vendor's  lien  necessarili/ 
supposes  that  he  retains  the  possession  of  the  goods  ;  but  I  must  be 
permitted  to  doubt  whether  the  cases  referred  to  have  established 
the  residue  of  the  rule."  And,  referring  to  Norman  v.  Phillips,^ 
Lord  Campbell  thus  proceeds ;  "  Alderson,  B.,  says :  '  The  true 
rule  appears  to  be,  that  acceptance  and  delivery  under  the  Statute 
of  Frauds  means  \sic  ;  as  though  the  acceptance  and  receipt  were, 
in  effect,  one  word]  such  an  acceptance  as  precludes  the  purchaser 
from  objecting  to  the  quality  of  the  goods.'  He  adds,  what,  with 
great  deference,  is  a  better  reason :  '  the  carrier  is  only  an  agent 
for  the  purpose  of  carrying ;  and  here  the  purchaser  himself  im- 
mediately refused  to  take  the  goods.'  It  was  upon  this  reason 
that  the  rest  of  the  court  appears  to  have  proceeded." 

We  would  first  direct  attention  to  the  admissions  here,  by  Lord 
Campbell  and  the  rest  of  the  Court  of  Queen's  Bench,  to  two  im- 
portant points  on  which  we  have  been  insisting:  1.  That  the  re- 
ceipt of  the  carrier,  qud  carrier,  is  not  the  actual  receipt  of  tlie 
vendee,  as  he  "is  only  an  agent  for  the  purpose  of  carrying"  the 

10  C.  B.  N.  s.  489,  stated  and  commented  an   actual   transmission   of  the   property 

on,  ?«/ra      In  Saunders  v.  Topp,  4   Ex.  and  possession  in  the  whole  of  the  goods, 

^yu.  It  will  be  noticed  that  the  action  was  without  which  in  such  case,  so  that  trover 

tor  goods  sold  and  delivered,  which,  as  we  can  he  maintained  by  the  vendee  for  the 

nave  s^een,  sujrra,  p.  370,  will  always  lie  goods,  t1ie  statute  is  not  satisfied, 
wnen  there  have  been  an  acceptance  and  i  15  Q.  B    428 

actual  receipt  of  tlie  whole  of  the  goods  2  9  P5/&  c_  jgf^  ^t  p.  577. 

under  the  statute,  as  then  there  has  been  3  14  ji,  &  y^ ^  277. 


PART   VI.]  THE    ACCEPTANCE.  375 

goods,  and  of  delivering  them  for  the  shipper  to  the  consignee, 
whoever  he  may  be,  whether  purchaser  of  the  goods  or  not ;  and 
is  not  the  agent  of  the  purchaser  to  actually  receive  the  goods  for 
him  under  tlie  statute.  He  receives  for  the  shipper,  and  delivers 
for  the  shipper;  the  actual  receipt  by  the  purchaser  under  the 
statute  being  the  receipt  by  himself  ;   his  servants,  etc. 

2.  When  there  have  been  both  an  acceptance  and  an  actual 
receipt  of  the  whole  of  the  goods  to  satisfy  the  statute,  both  the 
property  and  the  possession  therein  and  thereof  are  in  the  pur- 
chaser; and  these  being  both  out  of  the  vendor,  and  actually  in 
the  vendee,  then  the  vendee's  lien  is  gone  ;  "  for  the  vendor's  lien 
necessarily  supposes  that  he  retains  the  possession  of  the  goods." 
Hence,  as  when  there  have  been  both  an  acceptance  and  actual 
receipt  of  the  whole  of  the  goods,  the  statute  is  satisfied,  and  then 
both  the  property  and  possession  of  and  in  the  whole  of  the  goods 
are  in  the  vendee,  it  follows,  that  as,  where  the  lien  continues,  the 
statute  has  not  been  satisfied,  so,  clearly,  where  the  right  of  stop- 
page in  transitu  continues  as  to  the  whole  of  the  goods,  the  stat- 
ute is  not  satisfied  either  ;  for  the  stoppage  in  transitu  does  not 
exist  where  both  the  property  and  the  possession  are  in  the  vendee. 
It  further  follows,  that  when  the  property  and  the  possession  in 
the  whole  of  the  goods  have  actually  passed  to  and  been  vested  in 
the  vendee,  and  the  sale  is  not  on  credit,  an  action  will  at  once 
lie  against  the  vendee  for  the  price,  as  for  goods  sold  and  deliv- 
ered ;  and,  on  the  other  hand,  the  vendee  can  maintain  trover  for 
the  goods  for  their  wrongful  withholding,  against  any  party,  for 
such  wrongful  withholding. 

These  are  two  very  important  points  settled. 

Now,  let  us  see  where  the  mistakes  are  in  connection  with  the 
differences  between  the  views  of  Lord  Campbell,  Parke,  J.,  and 
Alderson,  B. 

First,  we  must  premise,  that  the  acceptance  of  the  statute 
may  be  express  or  implied ;  and  that  the  actual  receipt  may  be 
manual,  constructive,  or  symbolical.  The  acceptance  is  express 
where  the  specific  goods  sold  have  been  selected,  agreed  upon, 
assented  to,  as  between  the  buyer  and  seller,  as  the  very  subject 
of  the  particular  contract.  The  acceptance  may  be  implied  when 
there  is  an  actual  receipt  of  the  goods,  and  the  vendee  unduly 
retains  them,  or  so  deals  with  them  under  such  circumstances  as 
will  warrant  a  jiii-y  in  finding  that  ho  has  assented  to  them,  taken 
to  them,  accepted  them,  as  the  actual  owner.  The  actual  receipt 
may  be  manual,  constructive,  or  symbolical,  in  all  such  cases 
where  those  different  modes  of  receiving  would  be  generally  good 
at  common  law,  and  which  would,  in  all  cases  so  satisfying  the 


376  COMMENTARIES   ON   SALES.  [BOOK   IV. 

statute,  by  a  delivery  of  the  whole,  in  an  action  for  the  price  of 
o-oods  as  for  goods  sold  and  delivered,  sustain  the  alleged  delivery. 

We  think  this  so  far  is  clear. 

In  Morton  v.  Tibbett  ^  the  action  was  for  goods  sold  and  deliv- 
ered, and  goods  bargained  and  sold.  The  sale  was  of  wheat  by 
sample,  under  a  verbal  contract,  and  there  were  an  acceptance  and 
actual  receipt  of  the  sample  at  M.,  as  part  of  the  bulk,  delivered 
to  the  defendant,  on  Aug.  25,  1848,  at  the  time  oi  the  sale.  The 
defendant  said  that  he  would  send  one  E.,  on  the  following  morn- 
ing, to  receive  "  the  residue "  of  the  wheat,  to  be  taken  for  the 
defendant  from  M.  to  W.  On  August  26  E.  received  the  wheat 
accordingly.  On  the  same  day  the  defendant  sold  the  wheat,  at 
a  profit,  by  the  same  sample,  to  one  H.  at  W.,  where  it  arrived 
on  August  28,  and  was  tendered  by  E.  to  H.  on  the  following 
morning,  when  H.  refused  to  take  it,  on  the  ground  that  it  did 
not  correspond  with  the  sample.  Up  to  this  time  the  defendant 
had  not  seen  the  residue  of  the  wheat,  nor  had  any  one  examined 
it  on  his  behalf.  Notice  of  H.'s  repudiation  of  his  contract  was 
given  by  H.  to  the  defendant,  who,  on  August  30,  sent  a  letter  to 
the  plaintiff  repudiating  the  contract  on  the  same  ground.  The 
defendant  objected  on  the  trial  that  there  was  no  evidence  of 
acceptance  and  actual  receipt  to  satisfy  the  statute.  The  jury 
found  for  the  plaintiff,  and  leave  for  a  nonsuit  was  reserved,  if 
the  court  should  think  either  that  there  was  no  evidence  of  ac- 
ceptance and  receipt,  or  no  such  evidence  as  justified  the  verdict. 
The  court  unanimously  sustained  the  verdict. 

We  think  that  the  decision  was  correct.  And  yet  we  think  that 
the  statements  of  Erie,  J.,  and  of  Lord  Campbell,  C.  J.,  during  the 
argument  as  to  the  law  relating  to  sale  by  sample,  are  also  cor- 
rect. Erie,  J, :  "  The  purchaser  has  a  right  to  object  that  the 
bulk  does  not  correspond  with  the  sample,  after  acceptance  within 
the  Statute  of  Frauds."  Lord  Campbell,  C.  J. :  "  The  acceptance 
[''and  the  actual  receipt,''  omitted  as  usual]  under  the  statute 
is  [are]  merely  instead  of  a  memorandum ;  where  there  is  a 
memorandum,  the  purchaser  may  repudiate  the  goods  if  they  do 
not  agree  with  sample." 

In  this  case  there  were,  first,  the  acceptance  and  actual  receipt 
of  a  part  in  the  sample,  as  a  part  of  the  bulk,  which  was  sufficient 
to  take  the  case  out  of  the  statute.  Second,  there  was  an  actual 
receipt  of  the  whole,  the  delivery  to  the  vendee's  lighterman  being 
a  delivery  to  the  vendee,  there  being  no  question,  as  the  vendor 
had  clearly  parted  with  the  possession  to  the  vendee,  of  tlie  reten- 
tion, in  the  vendor,  either  of  a  lien  or  of  the  right  of  stoppage  in 

1  15  Q.  B.  428. 


PART    VI.]  THE    ACCEPTANCE.  377 

transitu.  And,  third,  after  the  actual  receipt  of  the  whole  of  the 
goods  by  the  vendee,  there  was  such  a  dealing  by  him  with  the 
goods  as  implied  an  "acceptance"  of  the  whole  of  them.  So 
that,  even  had  there  been,  ab  initio,  no  acceptance  and  actual 
receipt  of  a  part  of  the  goods,  there  were  an  acceptance  and  actual 
receipt  of  the  whole  when  the  whole  of  the  goods  were  actually 
received,  and  impliedly  accepted  by  the  vendee's  appropriating 
them  to  his  own  use  by  making  a  sale  of  them. 

Instead  of  this  being  at  all  counter  to  the  rule  laid  down  by 
Alderson,  B.,  in  Norman  v.  Phillips,^  and  from  which  Lord  Camp- 
bell and  the  rest  of  the  Court  of  Queen's  Bench  purport  to  dis- 
sent, it  is  in  the  strictest  harmony  with  it. 

Only  a  part  of  the  sentence  then  used  by  Alderson,  B.,  is  quoted 
by  Lord  Campbell,  the  latter  part,  which  illustrates  the  rule,  hav- 
ing been  omitted.  We  quote  the  whole  sentence,  putting  the  part 
omitted  by  Lord  Campbell  in  italics :  "  The  true  rule  appears  to 
me  to  be,  that  acceptance  and  delivery  under  the  Statute  of  Frauds 
means  such  an  acceptance  as  precludes  the  purchaser  from  ob- 
jecting to  the  quality  of  the  goods;  as,  for  instance,  if,  instead  of 
sending  the  goods  hack,  he  keejys  or  uses  them." 

This  exactly  covers  the  case  of  Morton  v.  Tibbett;^  for  there, 
after  the  actual  receipt  of  the  whole  of  the  goods,  the  defendant, 
instead  of  refusing  to  accept  them,  kejjt  and  sold  them.  This,  in 
fact,  is  the  very  ground  upon  which  the  judgment  in  Morton  v. 
Tibbett  rests.  Lord  Campbell  first,  entirely  misapprehending  it, 
dissents  from  the  portion  of  the  part  of  the  judgment  of  Aider- 
son,  B.,  which  he  quoted,  thus :  "  Tf  there  was  such  a  rule  as  is 
contended  for,  it  would  be  decisive  against  the  plaintiff  in  this 
case ;  for  the  defendant  never  had  an  opportunity  of  examining 
the  goods  sold ;  there  is  no  evidence  that  E.  was  his  agent  for 
that  purpose ;  and  he  had  done  nothing  to  preclude  him  from 
objecting  to  the  quality  of  tlie  wheat."  And  then,  in  the  strictest 
accordance  with  the  rule  as  correctly  laid  down  by  Alderson,  B., 
Lord  Campbell  proceeds:  "But  if  there  be  no  such  rule,  then 
surely  there  was  evidence  to  submit  to  the  jury,  and  to  justify 
them  in  finding  an  acceptance  and  receipt.  He  specially  sent  E. 
to  receive  the  wheat.  After  the  delivery  of  the  wheat  to  his  agent, 
and  when  it  was  no  longer  in  the  possession  of  the  vendor,  in- 
stead of  rejecting  it,  as  in  other  cases,  he  exercised  an  act  of 
ownership  over  it  by  re-selling  it  at  a  profit,  and  altering  its  des- 
tination by  sending  it  to  another  wharf,  there  to  be  delivered  to 
his  vendee.  The  wheat  was  then  constructively  in  his  own  posses- 
sion ;  and  could  such  a  re-sale  and  order  take  place  without  his 
1  14  M.  &  W.  277,  283.  2  15  q.  j>_  403. 


378  COMMENTARIES   ON   SALES.  [BOOK   IV. 

liavino-  accepted  and  received  the  commodity  ?  Does  it  lie  in  his 
mouth  to  say  that  he  has  not  accepted  that  which  he  has  re-sold 
and  sent  onto  be  delivered  to  another  ?  At  any  rate,  is  not  this 
evidence  from  which  such  an  acceptance  and  receipt  may  be  in- 
ferred bv  the  jury  ?  Upon  similar  evidence,  the  finding  of  an 
acceptance  and  a  receipt  has  been  sanctioned  by  very  eminent 

judges." 

As  will  be  observed,  instead  of  this  being  opposed  to  what  we 
have  quoted  from  Alderson,  B.'s,  judgment,  it  is  in  the  strictest 
possible  harmony  with  it.  Lord  Campbell  then  goes  on  to  cite 
Hart  V.  Sattley,!  Chaplin  v.  Rogers,^  and  Blenkinsop  v.  Clayton,^ 
all  stated  by  us,  supra,  not  one  of  which  can  be  sustained  except 
on  the  very  grounds  laid  down  by  Alderson,  B.,  as  above  quoted. 
Lord  Campbell,  too,  refers  approvingly  to  what  we  consider  is  the 
wrongly  decided  case  of  Bushel  v.  Wheeler;*  but  does  so  not  only 
in  a  manner  which  sustains  our  criticism  on  that  decision,  but 
in  effect  to  sustain  the  above-quoted  opinion  of  Alderson,  B.,  as 
well. 

The  point  in  the  language  of  Alderson,  B.'s  judgment  is,  that 
it  was  used  in  Norman  v.  Phillips,"^  which  was  not  a  case  of  sale 
by  sample  at  all,  but  was  an  action  for  goods  sold  and  delivered, 
where  it  was  claimed  that  there  had  been  an  acceptance  and  actual 
receipt  of  the  ivliole  of  the  goods,  where  it  would  seem  tliat  there 
had  been  neither  the  one  nor  the  other. 

The  language  of  Parke,  J.,  in  Smith  v.  Surman,^  quoted  by  Lord 
Campbell,  is  inaccurate,  and  fairly  open  to  criticism ;  but  not  on 
the  ground  on  which  it  is  criticised  by  Lord  Campbell ;  whose  lan- 
guage, after  correctly  referring  to  the  ratio  decidendi  of  Smith  v. 
Surman,  is :  "A  very  learned  judge,  my  brother  Parke,  does  un- 
necessarily add  that '  the  later  cases  have  established  that  unless 
there  has  been  such  a  dealing  on  the  part  of  the  purchaser  as  to 
deprive  him  of  any  right  to  object  to  the  quantity  or  quality  of 
the  goods,  or  to  deprive  the  seller  of  his  right  of  lien,  there  cannot 
be  any  part  acceptance.'  That  there  can  be  no  acceptance  and  re- 
ceipt by  the  purchaser  while  the  lien  of  the  vendor  remains,  is 
clear  enough  ;  for  the  vendor's  lien  necessarily  supposes  that  he 
retains  the  possession  of  the  goods  ;  but  I  must  be  permitted  to 
doubt  whether  the  cases  referred  to  have  established  the  residue 
of  the  rule." 

The  rule  itself  is  wrong,  not  on  the  ground  stated  by  Lord 
Campbell,  but  on  this  ground.     It  is  confidently  submitted  that  it 

1  3  Camp.  528.  *  8  Jur.  532  ;  s.  c.  15  Q.  B.  442,  n, 

2  1  East,  192.  5  14  ^,l   &  ^y    277. 

3  7  Taunt.  597.  6  9  b_  &  (j_  ^g^^  5;^^ 


i 


PART    VI.]  THE    ACCEPTANCE,  379 

is  not  correct  that  there  cannot  be  "  a  part  acceptance^'*  under  the 
statute,  which  does  not  involve  an  abandonment  of  the  seller's 
lien,  on  that  part  of  the  goods  (where  the  sale  is  not  on  credit) 
which,  not  having  been  actually  received  by  the  vendee,  remains  in 
the  possession  of  the  vendor  ;  nor,  on  the  other  hand,  where  there 
have  been  an  acceptance  and  a  receipt  of  but  part  of  the  goods,  does 
it  follow  that  such  an  acceptance  and  part  receipt  are  not  good  to 
take  the  case  out  of  the  Statute  of  Frauds,  even  though  the  vendee 
is  not  deprived  of  the  right  to  object  to  the  quantity  or  quality  of 
that  part  of  the  goods  which  he  has  not  received. 

As  has  been  so  often  correctly  said,  the  memorandum  in  writ- 
ing of  the  contract,  or  the  giving^  of  something  in  earnest  or  part 
payment  is,  as  are  the  acceptance  and  actual  receipt  of  some  part 
of  the  goods,  equally  potent  to  make  the  contract  good  within  the 
statute  ;  and  yet,  in  neither  of  these  two  prior  cases,  is  the  lien 
parted  with,  or  is  there  a  deprivation  of  the  right  of  examination 
and  rejection  of  the  goods  which  have  not  been  accepted  and  act- 
ually received ;  then  why  should  there  be  any  the  more  such  depri- 
vation in  the  case  where  there  have  been  but  an  acceptance  and 
receipt  of  some  part  of  the  goods  ?  Clearly,  there  is  not.  But 
where  there  havB  been  an  acceptance  nnd  an  actual  receipt  of  the 
whole  of  the  goods,  then  it  is  quite  another  thing ;  then  there  is  no 
longer  any  possession  remaining  in  the  vendor  upon  which  a  lion 
can  rest ;  and,  on  the  other  hand,  the  whole  of  the  goods  having 
been  accepted,  selected,  approved,  recognized,  taken  to,  as  the  very 
subject  of  the  contract,  and  having  been  actually  received  as  well 
by  the  vendee ;  having  been  accepted  and  received,  the  whole  of 
the  goods  have  absolutely  vested  in  him,  and  as  the  result  of  such 
acceptance  and  actual  receipt,  there  is  no  place  for  any  opposing 
action  of  rejection.  And,  therefore,  it  is  quite  correct,  as  was 
really  held  in  Smith  v.  Surman,i  that,  there  having  been  there  not 
even  an  acceptance  and  actual  receipt  of  any  part  of  the  goods,  the 
lien  on  the  one  hand  remaining  intact  on  the  whole  of  them,  and 
the  corresponding  right  to  object  also  remaining,  the  statutory  re- 
quirements had  not  been  complied  with  to  make  the  contract  good, 
and  it  could  not  be  enforced.  So,  thus  correcting  the  mistake  of 
Parke,  J.,  in  this  respect,  it  is  clear  that  the  one  part  of  the  rule 
animadverted  upon  by  Lord  Campbell  is  equally  as  correct  as  the 
other  part  which  he  approves.  And  Lord  Campbell's  often-quoted 
theory  that,  as  regards  the  tvhole  of  the  goods  there  can  be  an  ac- 
ceptance under  the  Statute  of  Frauds,  which  is  not  an  acceptance, 
is  a  contradiction  in  terms,  and  is  absurd. 

There  is  another  mistake  by  the  court  in  Morton  v.  Tibbett,^ 

1  9  B.  &  C.  561.  2  15  Q.  B.  428,  434. 


1 


380  COMMENTARIES   ON   SALES.  [bOOK   IV. 

which  seems  to  have  entirely  escaped  the  observation  of  previous 
writers  on  this  much  discussed  case.^  Lord  Campbell  says  :  "  The 
acceptance  is  to  be  something  which  is  to  precede^  or  at  any  rate,  to 
be  contemporaneous  ivitJi,  the  actual  receipt  of  the  goods,  and  is  not 
to  he  a  subsequent  act  after  the  goods  have  been  actually  received, 
weighed,  measured,  or  examined." 

From  the  very  nature  of  the  acceptance,  which,  as  we  have 
shown,  is,  in  the  statute,  something  entirely  different  from  the 
"  actual  receipt,"  which,  in  addition  to  the  acceptance,  is  also 
required  to  make  the  verbal  contract  good,  the  fallacy  of  this 
proposition  is  evident.  The  accepting,  as  the  selecting,  the  rec- 
ognizing, the  approving,  the  taking  to,  as  the  very  subject  of  the 
contract,  of  the  goods,  can  obviously  be  as  well  subsequent  to 
the  actual  receipt  as  prior  to  or  concurrent  with  it.  In  fact, 
where  there  have  not  been  a  previous  acceptance  and  receipt  of 
some  part  of  the  goods,  the  object  very  generally  of  the  weigii- 
ing,  measuring,  and  examining,  is  to  enable  the  vendee  to  decide 
whether  he  will  accept  or  not.  And  as  both  the  actual  receipt 
and  acceptance  must  concur  to  make  a  binding  contract,  it  follows 
that,  after  the  actual  receipt,  where  there  has  been  no  previous 
acceptance,  the  vendee  may  weigh,  measure,  and  examine,  and 
then  accept,  or  refuse  to  accept ;  in  the  former,  comj)leting  the 
evidence  of  the  contract  under  the  statute,  and,  in  the  latter, 
electing  that  there  shall  be  no  contract. 

The  mistake  of  Lord  Campbell  and  the  rest  of  the  court  in  this 
respect,  in  Morton  v.  Tibbett,  and  its  escape  from  previous  no- 
tice, are  the  more  remarkable  because  the  case  itself  furnishes  a 
refutation  of  the  error,  the  court  having  expressly  held,^  that  the 
goods  in  question  had  been  actually  received  by  the  defendant  by 
their  delivery  to  his  agent,  the  lighterman ;  and  that,  subse- 
quently, when  the  wheat  "  was  no  longer  in  the  vendor,  instead  of 
rejecting  it,  as  in  other  cases,"  the  vendee  "  exercised  an  act  of 
ownership  over  it  by  re-selling  it  at  a  profit,  and  altering  its  des- 
tination by  sending  it  to  another  wharf,  there  to  be  delivered  to 
his  vendee." 

So,  after  the  actual  receipt  of  the  goods,  the  vendee  had  the 
right  to  subsequently  exercise  his  right  of  acceptance  or  rejection  ; 
and,  in  Morton  v.  Tibbett,  according  to  the  holding  there,  by  his 
very  act  of  dealing  with  the  goods  subsequent  to  their  receipt,  he 
was  held  to  have  subsequently  accepted  them.  It  was  the  subse- 
quent dealing  with  the  goods  after  their  actual  receipt  by  his  agent, 

1  See  Benj.  on  Sales,  §§  144,  149,  151-     Browne   on   Statute  of  Frauds,  §§  316/, 
156  rt;    Blackburn  on  Sales,  2d  ed.  18;     328,   &c. 
Camp,    on    Sales,    176,    178,    185,    360 ;  2  gee  p.  439. 


PART    VI.]  THE    ACCEPTANCE.  381 

the  lighterman,  that  was  held  to  be  the  acceptance.  It  is  per- 
fectly clear  that  the  acceptance  may  precede,  be  concurrent  with, 
or  subsequent  to  the  actual  receipt. 

There  is  another  point  in  Morton  v.  Tibbett  which  requires  to 
be  made  clear.  Lord  Campbell  says  :  ^  "As  the  Act  of  Parliament 
expressly  makes  the  acceptance  and  actual  receipt  of  any  part  of 
the  goods  sold,  sufficient,  it  must  be  open  to  the  buyer  to  object 
at  all  events  to  the  quantity  and  quality  of  the  residue,  and 
even  when  there  is  a  sale  by  sample,  that  the  residue  offered 
does  not  correspond  with  the  sample.  We  are,  therefore,  of  opin- 
ion that,  whether  or  not  a  delivery  of  the  goods  sold  to  a  carrier 
or  any  agent  of  the  buyer  is  sufficient,  still  there  may  be  an  ac- 
ceptance and  receipt  within  the  meaning  of  the  act  without  the 
buyer  having  examined  the  goods  or  done  anything  to  preclude 
him  from  contending  that  they  do  not  correspond  with  the  con- 
tract. The  acceptance  to  let  in  parol  evidence  of  the  contract  ap- 
pears to  us  to  be  a  different  acceptance  from  that  which  affords 
conclusive  evidence  of  the  contract  having  been  fulfilled."  This 
is  altogether  a  most  remarkable  admixture  of  truth  and  error,  and 
shows,  as  so  many  other  cases  decided  by  that  court  do,  the  utter 
failure  of  the  English  Court  of  Queen's  Bench  to  understand  the 
nature  and  effect  of  the  clause  relating  to  the  acceptance  and  act- 
ual receipt  of  the  seventeenth  section  of  the  statute. 

While  there  is  here  a  failure  to  notice  the  difference  in  the 
effect,  which  we  have  pointed  out,  and  which  is  specially  applicable 
to  the  facts  in  Morton  v.  Tibbett,  between  the  rights,  respectively, 
of  the  vendor  and  vendee,  where  the  whole  of  the  goods  have  been 
accepted  and  actually  received,  and  where  only  a  part  of  them 
have  been  accepted  and  received,  there  is  one  admission  made 
here  by  Lord  Campbell  and  the  court  that  is  important.  It 
confirms  the  view  we  express  later  in  this  Part;  that  is,  tliat 
where  there  is  a  sale  by  sample,  the  vendee  has  only  the  right  to 
reject  the  goods,  after  their  actual  receipt,  where  they  "  do  not 
correspond  with  the  sample."  Hence,  the  purchasing  of  goods 
by  sample,  is,  ^n  itself,  an  assenting  to  them  ;  an  accepting  them  ; 
and,  after  actual  receipt  of  the  very  residue,  it  cannot  be  rejected.^ 

We  here  make  the  following  deductions  from  the  law  bearing 
on  these  subjects  which  we  have  discussed :  — 

1.  There  must  be  an  acceptance  and  actual  receipt  to  satisfy 
the  statute. 

1  At  p.  434.  very  latost  English  cases  themselves  sus- 

2  There  are  several  English  cases  de-  tain  our  view  on  this  |)oint,  \vhi(;h  we  fully 
aided,  improperly  we  think,  without  this  consider  in  a  later  jiortion  of  this  Part, 
point  being  noticed.     But  we  think  the  and  in  the  next  succeeding  Part. 


382  COMMENTARIES   ON   SALES.  [BOOK   IV. 

2.  The  acceptance  may  be  expressed  or  implied;  the  actual 
receipt  may  be  either  manual,  constructive,  or  symbolical,  where 
at  common  law  these  different  modes  of  transmitting  the  posses- 
sion of  goods  to  a  vendee  are  generally  good. 

3.  The  acceptance,  being  an  approval  of  the  goods,  and  a 
recognizing  and  taking  to  them  as  tiie  specific  subject  of  the  con- 
tract, may  be  either  prior  to,  concurrent  with,  or  subsequent  to 
the  actual  receipt. 

4.  As  there  must  be  both  an  acceptance  and  actual  receipt, 
there  may  be  an  acceptance  without  an  actual  receipt,  or  an 
actual  receipt  without  acceptance ;  but,  as  the  acceptance  may 
be  implied  as  well  as  express,  —  there  being  the  actual  receipt, — 
such  an  acceptance  may  be  implied  where  there  has  been  such  a 
dealing  with  the  goods  by  the  vendee,  or  such  laches  on  his  part, 
by  undue  detention  after  their  receipt,  as  will  raise  the  implica- 
tion that  he  has  taken  to  the  goods  as  owner. 

5.  As  an  acceptance  and  actual  receipt  of  a  part  of  the  goods 
bought  is  sufficient  to  make  the  contract  "  be  allowed  to  be  good," 
where  there  is  one  entire  sale  of  goods,  the  acceptance  and  actual 
receipt  of  a  part  of  the  goods  will  bind  the  contract  as  to  the 
whole  of  the  goods  sold,  and  prevent  either  buyer  or  seller  from 
repudiating  the  contract  with  reference  to  any  part  of  the  goods 
so  sold. 

6.  Notwithstanding  there  may  have  been  an  acceptance  and 
actual  receipt  of  part  of  the  goods  sold  so  as  to  make  the  contract 
be  deemed  good,  and  the  sale  is  not  on  credit,  the  vendor  may 

.retain  his  common-law  lien  and  right  of  stoppage  in  transitu  on 
the  residue  for  the  purchase-money  of  the  goods,  precisely  as  he 
may  when  there  has  been  a  memorandum  of  the  contract  in 
writing,  or  something  given  in  earnest  or  part  payment  for  the 
goods  to  take  the  case  out  of  the  statute. 

7.  But  where,  under  the  contract,  there  have  been  both  an 
acceptance  and  actual  receipt  of  the  ichole  of  the  goods,  the 
common-law  lien  (which  rests  in  the  possession)  and  the  stoppage 
in  transitu  (which  is  a  kind  of  continuation  of  the  lien)  are  both 
gone ;  the  property  and  possession,  by  the  acceptance  and  actual 
receipt  by  the  vendee  in  and  of  the  whole  of  the  goods,  being 
absolutely  in  him,  so  that  an  action  will  lie  against  him  for  the 
goods  as  for  goods  sold  and  delivered  ;  and  he,  on  the  other  hand, 
can  maintain  trover  against  any  wrongful  withholder  of  the  goods. 

8.  Where  there  has  been  a  sale  of  specific,  ascertained  goods, 
at  an  agreed  price,  this  in  itself  is  an  assent  to  an  acceptance  of 
them  within  the  meaning  of  the  statute.  Yet  as  there  must  also, 
to  meet  the  requirements  of  the  statute,  be  an  actual  receipt  of 


PART    VI.]  THE    ACCEPTANCE.  383 

them  or  of  some  part  of  them  by  the  vendee,  correlatively  in- 
volving the  delivery  by  the  vendor,  notwithstanding  the  accept- 
ance, the  inchoate  vendor  may  refuse  arbitrarily  (with  or  without 
reason)  to  deliver  the  goods,  and  the  inchoate  vendee  may  refuse 
arbitrarily  (with  or  without  reason)  to  actually  receive  the  goods, 
and  there  will  be  no  contract  "  allowed  to  be  good." 

9.  So,  where  there  has  been  no  acceptance  of  the  goods  or  of 
some  part  of  them,  within  the  statute,  by  the  vendee,  there  may 
be  an  actual  receipt  of  them  by  him,  and  he  may  refuse  to  accept 
them,  and  arbitrarily  reject  them. 

10.  Where  there  has  been  a  sale  of  goods  by  sample,  and  either 
a  delivery  or  not  of  the  sample  to  the  vendee,  but,  if  delivered, 
not  as  of  the  bulk  of  the  very  goods  sold,  though  this  may 
amount  to  an  acceptance  of  the  goods  sold,  yet  the  vendee 
may  arbitrarily  refuse  to  actually  receive  them  (with  or  without 
reason)  even  though  they  conform  to  the  sample,  as  there  is  no 
good  contract  without  both  acceptance  and  actual  receipt  of  the 
goods  sold  or  of  some  part  of  them. 

11.  Goods  may  be  sold  by  sample,  and  the  sample  may  be  ac- 
cepted and  actually  received  as  and  for  a  part  of  the  bulk  of  the 
actual  goods  so  sold,  so  as  to  make  the  contract  "  good ; "  and 
yet,  if  on  the  actual  receipt  of  the  residue  of  the  goods  so  sold, 
the  vendee  finds  that  such  residue  do  not  correspond  with  the 
sample,  he  may  reject  it :  his  acceptance  of  the  sample  being 
the  acceptance,  the  approval,  the  recognition,  the  assenting  to,  the 
taking  to,  as  the  very  subject  of  the  contract,  goods,  the  very  bulk 
of  which  is  to  correspond  with  the  sample,  which,  as  represent- 
ing the  very  bulk  of  the  same  description  of  goods,  he  has  ac- 
cepted and  actually  received,  and  only  so  accepted  and  received. 
Hence,  — 

12.  Where  goods  have  been  sold  by  sample,  and  the  sample 
has  been  delivered  as  and  for  a  part  of  the  very  bulk  of  the 
specific  goods  so  sold,  and  the  vendee  either  refuses  to  receive 
the  balance  of  the  goods,  or,  having  received  them,  claims  the 
right  of  rejecting  them,  on  tho  ground  that  they  do  not  cor- 
respond with  the  sample,  and  therefore  are  not  the  goods  pur- 
chased by  him ;  in  an  action  against  him  for  the  price,  as  for 
goods  sold  and  delivered,  the  question  is  for  the  jury,  and  if  they 
find  the  goods  do  correspond  with  the  sample,  he  is  liable;  if 
they  find  they  do  not  correspond  with  the  sample,  he  is  not  liable, 
for  he  has  never  accepted  them.     But, — 

13.  Where  there  has  been  a  sale  by  sample,  whether  there 
have  or  have  not  been  an  acceptance  and  actual  receipt  of  the 
sample  as  a  part  of  the  very  bulk  of  the  goods  sold  (Morton  v. 


384  COMMENTARIES    ON   SALES.  [BOOK   lY. 

Tibbett,^  exemplifying  both  of  these  propositions),  and  there  have 
been  an  actual  receipt  of  the  whole  of  the  goods  by  the  vendee, 
and  a  taking  to  and  dealing  with  the  goods  by  him  as  owner, 
this  is  an  implied  acceptance  of  the  whole  of  the  goods,  and  he 
will  be  held  to  have  accepted  them,  as  in  any  other  case  where, 
after  actual  receipt  by  him  of  the  goods,  he  has  been  guilty  of 
laches  by  undue  detention  of  them  without  signifying  to  the 
vendor  his  refusal  to  accept  them ;  or,  where  dealing  with  them 
as  owner  by  an  actual  sale  of  them  after  their  receipt,  he  may 
fairly  be  presumed  to  have  accepted  them. 

These  propositions  pretty  well  cover  the  many  disputed  ques- 
tions we  so  far  find  in  the  cases,  and  make  clear  many  of  the 
fallacies  which  abound  in  Lord  Campbell's  judgment  in  Morton 
V.  Tibbett,'^  and  in  many  others  of  the  judgments  in  the  English 
cases.  They  will  also  make  clear  the  sense  in  which  the  following 
from  Erie,  J.,  and  Lord  Campbell,  C.  J.,  is  accurate,  and  the  very 
glaring  sense  in  which  it  is  inaccurate.  Erie,  J. :  "•  The  purchaser 
has  a  right  to  object  that  the  bulk  does  not  correspond  with  the 
sample,  after  acceptance,  within  the  Statute  of  Frauds."  Lord 
Campbell,  C.  J. :  "  The  acceptance  under  the  statute  is  merely 
instead  of  a  memorandum ;  where  there  is  a  memorandum  the 
purchaser  may  repudiate  the  goods  if  they  do  not  agree  witli  the 
sample."  ^ 

In  Meredith  v.  Meigh^  goods  of  the  value  of  £10  and  upwards 
were  verbally  purchased,  and  were  ordered  to  be  shipped  to  the  A. 
Co.  at  Liverpool.  The  A.  Co.  were  carriers  by  inland  navigation 
to  the  residence  of  the  vendee.  The  goods  were  shipped  on  board 
the  M.,  a  vessel  selected  by  the  vendor ;  a  bill  of  lading  was 
signed  making  the  goods  deliverable  to  the  A.  Co.  at  Liverpool, 
and  was  forwarded  to  them,  of  all  which  the  vendee  had  notice, 
and  did  and  said  nothing.  Then  the  goods  perished  at  sea  on 
their  voyage  to  Liverpool ;  and  the  vendee  refused  to  have  any- 
thing to  do  with  them.  In  an  action  for  goods  sold  and  deliv- 
ered, the  judge  (Crompton,  J.)  directed  a  verdict  for  the  defendant, 
reserving  leave  to  enter  a  verdict  for  the  plaintiff,  in  event  of  the 
court  being  of  opinion  that  there  was  any  evidence  of  acceptance 
and  receipt  on  which  the  jury  would  have  been  justified  in  acting. 
The  court  sustained  the  verdict ;  but  expressed  the  opinion  that 
had  the  bill  of  lading  been  sent  to  the  defendant,  and  he  had  dealt 

-  15  Q.  B.  428.  acceptance  and  actual  receipt  of  a  part, 

2  15  Q.  B.  428.  he  may  repudiate  the  residue  if  it  he  dif- 

3  Morton  y.  Tibbett,  15  Q.  B.  428,  431.  ferent"  from,  and  therefore  not  a  part,  of 
The  correction  is  :  After  acceptance  and  the  goods  which  he  has  accepted  and  ac- 
actual   receipt  of  the  ivhole,   the   vendee  tually  received. 

cannot  object,  so  as  to  take  the  case  out  *  2  E.  &  B.  364. 

of  the  exception  to  the  statute.      After 


! 


PART    VI.]  THE    ACCEPTANCE.  385 

with  the  goods  as  owner,  there  would  have  been,  in  effect,  a  sym- 
bolical delivery  of  the  goods,  and  an  implied  acceptance  of  them, 
Coleridge,  J.,  expressing  the  opinion  that  liad  the  A.  Co.  been  the 
vendees  there  would  not  have  been  even  by  them  an  acceptance 
or  a  receipt  of  the  goods. 

The  rule  we  deduce  from  Meredith  v.  Meigh,^  coupled  with  Mor- 
ton V.  Tibbett,^  is,  that  although  the  carrier,  as  such,  has  no  power 
to  accept  or  actually  receive  the  goods  to  take  the  case  out  of  the 
statute,  yet  where  the  bill  of  lading  in  favor  of  the  vendee  is  sent 
to  and  received  by  him,  and  he  treats  the  goods  as  owner  by  sell- 
ing them,  assigning  the  bill  of  lading,  his  receipt  of  the  bill  of 
lading,  and  selling  the  goods  under  it,  will  be  treated  as  a  symbol- 
ical receipt  of  the  goods,  and  an  implied  acceptance  of  them.  In 
this  case  the  right  of  stoppage  in  transitu  in  the  original  vendor  is 
gone,^  and  the  property  and  the  right  to  the  possession  are  entirely 
out  of  the  vendor.  To  make  an  acceptance  and  actual  receipt  of 
the  part  of  the  goods  meet  the  requirements  of  tlie  statute,  obvi- 
ously there  must  be  an  acceptance  and  an  actual  transfer  of  the 
possession  of  such  part,  so  that  the  possession  is  taken  entirely 
out  of  the  vendor  and  vested  in  the  vendee.  Equally  so,  where 
reliance  is  placed  on  the  acceptance  and  actual  receipt  of  the 
whole  of  the  goods,  must  there  be  not  only  the  acceptance  of 
them,  but,  to  make  the  actual  receipt,  an  actual  transfer  of  the 
possession  of  the  whole  of  the  goods,  such  possession  clearly  must 
be  absolutely  out  of  the  vendor  and  in  the  vendee ;  and,  hence,  so 
long  as  the  vendor's  lien  or  right  of  stoppage  in  transitu  continues 
on  the  whole  of  the  goods,  the  possession  is  not  absolutely  in  the 
vendee,  and,  therefore,  there  has  been,  in  such  case,  no  actual 
receipt  by  him. 

The  Court  of  Exchequer  in  Hunt  v.  Hecht  ^  dissented  from  some 
of  the  dicta  of  the  court  in  iMorton  v.  Tibbett,^  the  unsoundness  of 
which  we  have  pointed  out;  but  agreed  with  the  view  we  have 
taken  as  to  the  ratio  decidendi  of  that  case.  Martin,  B.,  said : 
"  In  my  opinion  an  acceptance  to  satisfy  the  statute  must  be 
something  more  than  a  mere  receipt.  It  means  some  act  done 
after  the  vendee  has  exercised  or  had  the  means  of  exercising  his 
right  of  rejection."  In  this  case  the  defendant  agreed  to  purchase 
of  the  plaintiff  bones  of  a  particular  kind,  to  be  separated  from  a 
heap  of  various  bones,  and  gave  the  plaintiff  a  note  addressed  to  a 
wharfinger  to  receive  and  ship  the  bones  ;  and  the  plaintiff  accord- 

1  2  E.  &  B.  364.  Usborne,  7  M.  &  G.  C78 ;    Kingsford  v. 

2  15  Q.  B.  428.  Merrv,  1  H.  &  N.  503. 

3  See  Dracchi  v.  Anf;lo  E.  N.  Co.,  L.  R.  *  8  Ex.  814. 

3  C.  P.  190  ;  Wait  v.  Baker,  2  Ex.  1 ;  Hare  »  15  Q.  B.  428. 

V.  Dresser,  7  H.  L.  Cas.  290  ;  Jenkyns  v. 
VOL.  II.  25 


386  COMMENTARIES   ON   SALES.  [BOOK  IV. 

ino-ly  sent  to  the  wharf  some  bones,  which,  on  inspection,  the  defend- 
ant refused  to  accept,  he  having  "  found  that  they  did  not  correspond 
with  his  order,"  and,  therefore,  he  clearly,  in  no  proper  sense  of 
the  term  "  accept "  in  the  statute,  had  accepted  them.  It  was  held 
that  although  this  was  a  receipt  of  the  goods  by  a  person  author-, 
ized  by  the  defendant  to  receive  them,  there  was  no  acceptance. 

There  can  be  no  doubt,  we  think,  of  the  entire  correctness  of 
the  holding  in  Hunt  v.  Hecht ;  ^  but  there  is  again,  in  this  case, 
language  used  by  some  of  the  judges  that  is  very  liable  to  be  mis- 
understood. For  instance,  referring  to  acceptance  under  the  stat- 
ute, Pollock,  C.  B.,  says :  "  A  person  cannot  accept  a  commodity 
which  is  not  in  a  condition  to  be  accepted  by  reason  of  its  re- 
quiring to  be  separated  from  a  larger  bulk.  If  the  contract  be 
for  the  purchase  of  a  certain  quantity  of  flour  or  wheat,  part  of  a 
larger  quantity,  there  can  be  no  acceptance  until  it  is  measured 
and  set  apart." 

And  Alderson,  B.,  uses  language  very  much  of  the  same  char- 
acter. If  by  this  they  mean  that  there  cannot  be  an  acceptance 
and  actual  receipt  of  goods,  within  the  exception  in  the  seven- 
teenth section  of  the  statute,  under  a  verbal  sale,  where  nothing 
has  been  given  in  earnest  or  part  payment  to  bind  the  bargain, 
where  the  goods  sold  have  not  been  measured  or  separated  from  a 
larger  bulk,  then,  we  think,  they  entirely  misstate  the  statute. 
The  language  they  use  can  only  be  explained  on  the  ground  that 
they,  in  this  instance,  lost  sight  of  the  fact  that  there  may  be  an 
acceptance  and  receipt  under  the  statute  which  may  make  a  ver- 
bal contract  "  good,"  so  that  it  can  be  enforced,  and  yet  not  such 
an  acceptance  and  receipt  as  will  pass  the  property  to  the  vendee 
in  the  whole  of  the  goods  purchased. 

There  may  be  wheat  or  flour  or  oil  in  bulk,  a  specific  quantity 
of  which  may  be  sold  by  verbal  contract,  and  if  a  part  be  accepted 
and  actually  received  the  contract  is  "  good,"  though  there  be  no 
separation  of  the  mass  of  the  goods  sold  from  the  general  bulk. 
Or  there  may  be  a  sale  of  a  specific  quantity  of  goods  by  sample, 
where  the  goods  sold  are  not  only  part  of  a  larger  bulk,  but  where 
the  vendee  may  not  even  have  seen  them,  and  clearly,  on  this 
point,  if  the  sample  be  delivered,  accepted,  and  received,  as  and 
for  a  part  of  the  bulk  of  the  goods  sold,  this  is  sufficient  to  make 
the  contract  good,  and  to  sustain  an  action  for  goods  bargained 
and  sold,  should  the  vendee  refuse  to  receive  the  balance  of  the 
goods  which,  at  the  time  of  the  acceptance  and  actual  receipt  of 
the  part,  were  unmeasured  and  unsepa rated  from  a  greater  bulk. 
The  accepting  to  satisfy  the  statute  and  the  accepting  (or  appro- 

1  8  Ex.  814. 


PART   VI.]  THE   ACCEPTANCE.  387 

priating)  to  pass  the  property  in  specific  goods  may  be  two  very 
different  things,  and  it  is  from  the  fact  that  the  term  "  accept " 
has  different  meanings  that  so  much  confusion  has  arisen  in  the 
construction  of  the  statute. 

In  Hohnes  v.  Hoskins,^  the  defendant  verbally  agreed  to  pur- 
chase of  the  plaintiff  some  cattle  then  in  his  field.  After  the 
bargain  was  concluded,  the  defendant  felt  in  his  pocket  for  his 
check-book  in  order  to  pay  for  the  cattle ;  but  finding  he  had  not 
got  it,  he  told  the  plaintiff  to  come  to  his  house  in  the  evening 
for  the  money.  It  was  agreed  that  the  cattle  should  remain  in 
the  plaintiff's  field  for  a  few  days,  and  that  the  defendant  should 
feed  them  with  the  plaintiff's  hay,  which  was  accordingly  done. 
The  reporter's  note  of  this  case  is :  "  Held,  that  there  was  no 
evidence  of  an  acceptance  of  the  cattle  to  satisfy  the  Statute  of 
Frauds."  There  was  a  very  clear  acceptance  of  them  as  the  spe- 
cific subject  of  the  contract ;  but  there  was  no  actual  receipt, 
—  the  possession,  with  the  lien  attached,  being  in  the  vendor. 
Parke,  B.,  here  well  says  :  "  In  order  to  satisfy  the  statute,  there 
must  he  an  acceptance^  and  an  actual  or  constructive  delivery. 
Now,  in  this  case  there  was  no  actual  delivery ;  and,  therefore,  to 
entitle  the  plaintiff  to  recover,  there  must  be  such  a  dealing  with 
the  cattle  by  the  defendant,  as  owner,  that  the  plaintiff  would  lose 
his  lien.  But  it  is  clear  that  the  plaintiff  never  meant  to  part 
with  the  cattle  until  the  price  was  paid ;  and  there  is  no  ground 
for  holding  that  the  mere  giving  permission  to  feed  the  cattle 
changed  the  possession  ; "  i.  e.,  constituted  an  actual  receipt. 

In  Bigg  V.  Whisking,^  it  was  held,  following  Eliott  v.  Thomas,^ 
that  where,  on  the  same  day,  different  lots  of  timber  were  bought 
at  different  places,  and  at  the  close  a  memorandum  of  the  dif- 
ferent lots  was  made  out  by  the  vendor  for  the  vendee,  the  trans- 
action was  entire,  and  an  acceptance  and  actual  receipt  of  a  part 
took  the  contract  as  to  the  whole  out  of  the  statute. 

Lord  Campbell,  C.  J.,  in  Parker  v.  Wallis,*  refers  to  the  lan- 
guage he  used  in  Morton  v.  Tibbett,^  the  inaccuracies  in  which  we 
have  pointed  out,  and  says :  "  To  make  an  acceptance,  it  is  not 
necessary  that  the  vendee  should  have  acted  so  as  to  preclude 
himself  from  afterwards  making  objection  to  the  quality  of  the 
article  delivered ;  but  he  must  have  done  something  indicating 
that  he  has  accepted  part  of  the  goods  and  taken  to  them  as 
owner." 

The  law  is  clear,  notwithstanding  the  confusion  in  the  cases. 
If  there  have  been  an  acceptance  and  actual  receipt  of  the  whole 

»  9  Ex.  753.  *  4  E.  &  B.  21. 

2  14  C.  B.  195.  •  6  15  Q.  B.  428. 

«  3  M.  &  W.  170. 


388  COMMENTARIES   ON   SALES.  [BOOK   17. 

of  the  goods,  the  vendee  has  no  further  right  to  object,  so  far  as 
the  Statute  of  Frauds  is  concerned.  If  there  have  been  an  accept- 
ance and  actual  receipt  of  a  part  of  the  goods  sold,  he  is  also  pre- 

chided outside  of  the  question  of  fraud  —  from  objecting  to  the 

balance  of  the  goods  he  has  bought;  but  he  is  not  precluded  from 
refusin"-  to  receive  for  such  balance  goods  which  lie  has  not 
bouo'ht ;  as,  if  the  sale  has  been  by  sample,  and  the  sample  has 
been  accepted  and  actually  received  as  a  part  of  the  goods  so 
bought,  he  is  bound  to  receive  the  balance  of  the  goods  he  ha& 
bought ;  but  he  is  not  compelled  to  receive  and  accept  the  bal- 
ance of  the  goods  if  they  are  not  according  to  the  sample; 
because  they  are  not  the  balance  of  the  goods  he  bought. 

In  Parker  v.  Wallis  ^  there  was  an  actual  receipt  of  the  whole  of 
tlie  goods  ;  but  as  there  was  a  handling  of  the  goods  by  the  vendee 
after  their  receipt,  it  was  held  to  be  a  question  for  the  jury  as  to 
whether  such  acts  were  such  a  taking  to  the  goods  as  owner  as 
would  constitute  an  acceptance.  The  evidence  of  acceptance  in 
the  case,  we  think,  outside  of  the  question  as  to  the  purchase  being 
one  of  specific  goods,  not  considered  in  the  case,  was  little  if  any 
more  tlian  the  merest  scintilla. 

Where  the  goods  have  been  accepted  and  actually  received  under 
a  verbal  contract,  the  sale  is  consummated,  and  it  is  no  longer  in 
the  power  of  either  of  the  parties,  without  the  consent  of  the 
other,  to  vary  or  rescind  the  contract.  As  we  have  shown,  where 
both  the  property  and  the  possession  have  passed  in  the  whole  of 
the  goods,  there  is  nothing  in  them  left  in  the  vendor ;  and,  on 
the  other  hand,  by  the  acceptance  and  receipt,  the  verbal  contract, 
under  which  the  property  and  possession  in  and  of  the  goods  have 
passed  to  the  vendee,  is  absolutely  fixed,  and  parol  evidence  is 
then  let  in  to  prove  what  the  contract  is ;  and  what  the  contract 
is,  is,  under  such  evidence,  a  question  for  the  jury. 

This  principle  is  well  illustrated  by  Tomkinson  v.  Staight,^ 
where,  on  the  verbal  sale  of  a  specific  piano  for  X15  10s.,  the 
piano  being  thus  (as  we  have  previously  intimated  would  be  the 
effect)  accepted  as  the  very  subject  of  the  sale,  it  was  actually 
received  by  the  vendee,  who,  after  receipt  of  it,  claimed  to  hold  it 
on  different  terms  from  those  on  which  it  was  sold,  accepted,  and 
received.  The  court  very  properly  held  that  he  could  not  do  so ; 
that  the  question  as  to  what  the  contract  was  under  which  the 
piano  was  accepted  and  received  was  for  tlie  jury ;  and  as  they 
had  found  that  the  contract  was  as  it  was  claimed  by  the  plaintiff 
to  have  been,  the  verdict  was  properly  for  him.     Cresswell,  J., 

1  5  E.  &  B.  21.  2  25  L.  J.  n.  s.  C.  P.  85  ;   s.  c.   17 

C.  B.  697. 


PART   VI.]  THE   ACCEPTANCE.  389 

very  correctly  said  :  "After  the  finding  of  the  jury,  we  must  take 
it  that  the  contract  was  for  the  sale  and  delivery  of  the  goods  on 
the  defendant's  premises  for  the  purpose  of  making  him  the  oivner.^ 
He  was  told  of  the  delivery,  and  assented  in  such  a  manner  as  to 
make  him  owner,  and  he  insists  on  keeping  the  goods  as  owner ; 
and  he  cannot  say  that  he  did  not  accept  [?  or  receive]  them  on 
the  true  terms  of  the  bargain.  He  disputed  the  terms  on  which 
he  became  owner,  which  he  was  at  liberty  to  do ;  but  the  jury 
have  found  against  him  on  that  question,  and  he  is  bound  by  their 
finding." 

The  case,  on  this  particular  point,  is  one  of  first  instance ; 
but,  as  we  have  pointed  out  in  the  note  below,  it  is  in  strict 
accord  with  the  construction  of  the  statute  we  have  contended 
for  throughout  this  Part;  and,  under  such  construction,  it  is 
one  of  the  plainest  and  simplest  cases  possible.  The  mind  of 
Jervis,  C.  J.,  wavered  considerably  during  the  discussion  of  the 
case  ;  but  he  ultimately  concurred  with  the  rest  of  the  court.  In 
the  case  in  question,  so  long  as  the  contract  remained  in  fieri,  the 
defendant  was  not  bound  by  it ;  and  though  by  his  act  of  buying 
the  specific  piano  at  an  agreed  price,  the  piano  was,  as  we  have 
claimed,  selected,  accepted,  approved,  recognized,  and  taken  to 
as  the  very  subject  of  the  sale,  yet  the  contract  would  not  "  be 
deemed  good "  until,  notwithstanding  this  acceptance,  there  had 
been  an  actual  receipt  of  it.  Hence  had  he,  prior  to  the  actual 
receipt,  refused  to  receive  it  on  the  original  terras  named,  it  was 
in  his  power  then  to  have  rescinded  the  contract,  and  there  would 
have  been  no  "  good  "  contract.  But  having,  by  his  acceptance 
and  actual  receipt,  taken  to  the  goods  as  owner,  the  contract  was 
finally  fixed  and  "deemed  good  "  under  the  statute ;  and  he  was 
too  late  then,  of  his  own  mere  motion,  to  vary  or  rescind  the  con- 
tract, which  no  longer  remained  in  fieri? 

1  This  is  exactly  as  we  have  contended  says  at  the  time  that  he  accepts  them  on 
with  reference  to  the  effect  of  the  accept-  other  terms  than  those  on  which  the  ven- 
ance  and  actual  receipt  by  the  vendee  of  dor  is  willing  to  deliver  them,  that  is  a 
the  v)hole  of  the  goods  sold:  "it  makes  sufficient  acceptance.  For  this  Tomkin- 
him  the  owner;"  i.e.,  the  property  and  son  v.  Staight,  17  C.  B.  698,  is  cited, 
actual  possession  in  the  whole  of  the  goods  The  case  is  not  authority  for  any  such 
passing  to  the  vendee,  he  becomes  the  ab-  proposition  as  the  above,  which  is  not 
solute  owner,  the  goods  being  discharged  law.  The  goods  in  that  case  were  specific, 
of  any  lien  or  right  of  stoppage  in  trans-  ascertained  goods,  —  a  piano,  which  was 
itu ;  and  both  parties  being  ])reclu'led,  accepted,  assented  to,  approved,  under 
without  mutual  assent,  from  varying  or  the  particular  contract,  by  virtue  of  the 
rescinding  the  contract,  which  has  been  contract  itself,  as  in  Cusack  v.  Robinson, 
consummated  by  the  acceptance  and  act-  1  B.  &  S.  299,  Marshall  v.  Green,  1  C.  P. 
ual  receipt  of  the  whole  of  the  goods.  Div.  Z^,  and  numerous  other  cases,  as  the 

2  In  the  second  edition  of  Blackburn  subject  of  the  contract,  on  the  terms  on 
on  Sales,  p.  24,  it  is  said,  by  the  editor  of  which  the  minds  of  the  parties  to  the  sale 
that  edition,  but  not  by  Lord  Blackburn,  then  met.  Af/rr  fh£  actual  receipt  of  the 
that  if  the  vendee  accepts  the  goods,  but  'piano,  the  vendee  claimed  to  hold  it  on 


390  COMMENTARIES   ON    SALES.  [BOOK   IV. 

Marvin  v.  "Wallis,^  while  a  case  of  absolute  simplicity  itself, 
thorou<'-lily  sustaining  our  whole  contention  as  to  the  proper  con- 
struction of  the  terms  "  accept  and  actually  receive  "  of  the  stat- 
utes, is  an  important  case  ;  showing,  as  do  so  many  of  the  cases 
in  the  Eno-lish  Court  of  Queen's  Bench,  how  these  words  have 
been  distorted  and  misunderstood.  Lord  Campbell,  C.  J.,  seem- 
ing to  be  fairly  despairing  of  obtaining  any  clear,  reasonable, 
uniform  construction  of  the  act,  exclaimed:  "I  must  say  that, 
giving  as  I  do  full  effect  [?]  to  the  statute  while  it  remains,  I 
shall  rejoice  when  it  is  gone  [!].  In  my  opinion  it  does  much 
more  harm  than  good.  It  promotes  fraud  rather  than  prevents  it, 
and  introduces  distinctions  which,  I  must  confess,  are  not  pro- 
ductive of  justice."  ^ 

This  outburst  of  Lord  Campbell  was  simply  the  result  of  the 
continuous  failure  of  himself  and  so  many  of  the  judges,  in  per- 
petuity, of  the  English  Court  of  Queen's  Bench,  to  appreciate  the 
meaning  of  the  terms  "  accept  and  actually  receive  "  of  the  statute. 

Under  the  principles  we  have  laid  down  in  this  Part,  Marvin  v. 
Wallis  3  has  only  to  be  fairly  stated,  for  its  simplicity  to  appear. 
The  jury  in  the  case  found  that  there  was  a  verbal  contract  for 
the  sale  of  a  specific  horse  for  a  price  above  XIO ;  that,  after  this 
had  been  agreed  upon,  and  tiie  contract  thus  far  completed,  relat- 

terms  different  from  those  under  which  he  action,  to  prove  the  contract,  should  be 
had  accepted  it ;  recognized,  approved,  insisted  on.  As  it  is,  the  verbal  testimony 
assented  to  it,  as  the  subject  of  the  par-  lias  enough  influence  in  the  matter,  as  by 
ticular  contract  of  sale,  and  it  was  very  it  the  terms  of  the  contract  have,  neces- 
properly  held  that  he  could  not  do  so.  sarily,  to  be  established  ;  but  then,  as  in 
The  mistake  has  arisen  evidently  from  tlie  other  cases,  leaving  fhese  for  the  consid- 
failure  to  treat  the  acceptance  of  the  ven-  eratiou  ami  determination  of  the  jury, 
dee  as  an  entity  apart  from  the  actual  But  sweep  away  the  statute  of  frauds,  and 
receipt,  which  is  also  necessary,  as  well  then,  in  very  many  cases,  nothing  but  the 
as  the  acceptance,  to  furnish  the  statu-  mere  verbal  testimony  would  be  left  ;  un- 
tory  evidence  of  the  verbal  contract  made  less,  indeed,  it  were  enacted,  as  in  the 
between  the  parties  to  the  sale.  4th  section,  relating  to  the  sale  of  lands, 
^  6  E.  &  B.  726.  that  a  memorandum  in  writing  should  be 
2  When  Lord  Campbell  indulged  in  required  in  every  contract,  which  the  wise 
these  very  unwise,  not  to  say  petulant,  f ramers  of  the  statute  saw  would  virtually 
exclamations,  it  did  not  occur  to  him  that  paralyze  trade.  And  even,  under  the 
the  very  evils  which  the  statute  of  frauds  4th  section,  it  was  found  so  absolutely 
was  designed  to  correct,  and  which,  in  a  impossible  to  literally  carry  out  its  re- 
great  measure,  it  does  correct,  would,  by  quiremeiits  in  this  respect,  that  the  doc- 
its  repeal,  be  again  restored.  When  tliere  trine  of  "  part  performance  "  had  to  be  let 
is  an  intelligent  construction  of  the  stat-  in,  and  that  of  "resulting  trusts"  had  to 
ute,  we  know  of  no  branch  of  law  where  be  applied.  A  repeal  of  the  statute  would 
the  decisions  should  be  more  scientifically  be  to  increase  litigation  a  thousand-f(dd, 
uniform  than  under  this  statute.  To  re-  and  to  put  a  premium  on  the  fraud  and 
peal  the  statute  would  be  to  let  in  mere  perjury  which  the  statute,  in  requiring 
verbal  testimony,  —  with  the  conflict  other  evidence  in  addition  to  the'  mere 
therein  which  so  distinguishes  it, — un-  verbal  testimony,  was  designed  to  prevent, 
checked  by  the  further  evidence  of  care,  and  which  it  does  thereby  greatly  suc- 
deliberation,  action,  which  the  statute  ceed  in  so  doing, 
wisely  requires  in  that  vast  number  of  ^  6  E.  &  B.  726. 
cases  where  just  such  care,  deliberation, 


PART   VI.]  THE   ACCEPTANCE.  391 

ing  to  the  ascertained,  specified  horse,  the  parties  then  agreed  that 
the  vendee,  as  owner,  should  lend  the  horse  to  the  vendor,  who 
was  to  keep  the  horse,  not  as  unpaid  vendor,  but  as  gratuitous 
bailee  of  the  horse,  for  the  vendee,  as  such  owner.  Here,  then, 
was  the  accepting,  the  selecting,  the  approving,  the  recognizing, 
and  the  taking  to  of  the  horse  as  the  specific  subject  of  the 
verbal  contract ;  and  there  was  not  only  this  accepting  of  the 
horse,  as  the  subject  of  such  contract,  but  there  was  "  the  actual 
receipt "  of  the  horse  by  the  vendee,  in  the  possession  as  owner 
being  transferred  by  the  vendor  to  the  vendee  ;  the  constructive 
receipt  (which,  as  we  have  seen,  is  sufficient,  as  at  common  law, 
to  make  an  actual  receipt}  and  possession  being  then  by  and  in 
the  vendee ;  the  vendor's  possession  thereafter  being  the  posses- 
sion of  the  vendee  as  owner,  discharged  of  all  lien,  —  the  posses- 
sion, as  owner,  being  no  longer  in  the  vendor,  but  only  in  him  as 
the  servant  or  bailee  of  the  vendee. 

What  can  be  clearer  than  this  ?  The  statute  is  fully  satisfied. 
The  bailee  has  no  lien  for  the  price ;  cannot  pass  the  property  in 
the  horse  to  any  one  else ;  goods  sold  and  delivered  will  lie  for 
the  price ;  trover  for  the  possession  ;  and  neither  vendor  nor  ven- 
dee can,  without  the  consent  of  the  other,  rescind  the  contract, 
which  has  been  finally  closed  under  the  verbal  agreement,  the 
acceptance,  and  the  actual  receipt,  —  the  latter  made  such  by  the 
actual  transmission  of  the  property  and  possession  to  the  ven- 
dee, as  owner,  exactly  as  in  the  previous  case  of  Elmore  v.  Stone  ;^ 
the  facts,  in  the  one  case  as  in  the  other,  showing  that  the  vendor, 
in  holding  the  horse  in  each  of  the  cases,  did  so,  not  in  his  capa- 
city of  owner,  with  a  lien  attaching ;  but  simply  —  deprived  of 
his  lien  with  the  deprivation  of  possession  as  owner  —  as  the 
bailee  of  the  owner ;  the  bailee's  possession  being  the  possession 
of  the  owner,  the  purchaser  of  the  specific  horse ;  assented  to 
and  accepted  as  such. 

And  yet  the  case,  by  the  expressions  of  Lord  Campbell,  C.  J., 
and  Coleridge  and  Erie,  JJ.,  is  made  to  appear  as  one  which  had 
given  them  much  trouble,  and  had  involved  them  in  much  doubt. 
Erie,  J.,  says :  "  I  believe  that  the  party  who  inserted  the  words 
had  no  idea  what  he  meant  by '  acceptance  : '  that  opinion  I  found 
on  the  everlasting  discussion  which  has  gone  on  as  if  possession, 
according  to  law,  could  mean  only  manual  prehension." 

This  simply  arises  from  the  failure  to  observe  that  wlien  the 
terms  "  accept  and  actually  receive  "  are  used,  accept  is  not  used 
in  the  sense  of  receive  (either  as  a  matter  of  "  manual  prehen- 
sion," or   otherwise),  making   the   passage  mean  '•'•  receive    and 

1  1  Tauut.  458. 


392  COMMENTARIES    ON   SALE^.  [BOOK   IV. 

actuallv  receive ; "  but  that  it  is  used  in  the  entirely  different 
sense  which  we  have,  in  this  Part,  so  often  pointed  out. 

Ao-ain  tlie  term  is  "  actually  receive  ;  "  not  manually  receive  ; 
and  an  actual  receipt,  at  common  law,  as  well  as  under  the  stat- 
ute may  be  either  manual,  constructive,  or  symbolical ;  and,  as 
far  as  the  receipt  or  transmutation  of  the  possession  is  concerned, 
be,  in  the  one  case  as  in  either  of  tlie  others,  equally  actual 

Thus,  when  Coleridge,  J.,^  says:  "The  Statute  of  Frauds  re- 
quires an  actual  receipt,  which  implies  delivery  ajid  acceptance  ;  " 
we  say,  unhesitatingly,  in  reply,  it  implies  nothing  of  the  kind,  in 
the  sense  in  which  the  term  "  accept "  is  used  in  the  statute. 

Receipt  implies  delivery,  of  which,  under  the  statute,  the  one  is 
the  correlative  of  the  other.  Receipt,  under  the  statute,  does  not 
imply  acceptance,  as,  to  make  the  contract  good,  the  vendee,  ex- 
pressly, must  accept  and  receive ;  the  acceptance  alone  being  not 
sufficient,  by  the  very  words  of  the  statute,  which  requires  an 
actual  receipt  as  well  as  the  no  less  actual  acceptance  ;  whether 
the  latter  be  express  or  implied,  and  the  former,  as  at  common 
law,  manual,  constructive,  or  symbolical. 

Thus,  it  is  of  the  term  "  receipt,"  not  of  "  acceptance,"  that 
Erie,  J.,  should  have  said :  "  It  may  mean  manual  prehension,  or 
it  may  mean  a  handing  over  to  a  servant."  In  this  case,  there 
having  been  an  acceptance,  and  the  question  turning  upon  the 
point,  as  to  whether  there  was  an  actual  receipt  or  not,  the  lan- 
guage of  Erie,  J.,  applied  to  that  point,  is  accurate :  "  But  the 
question  is,  whether  there  has  been  an  exercise  of  the  right  in- 
consistent with  any  supposition  but  that  of  ownership  ;  whether 
there  is  an  actual  sale,  and  an  act  which  is  inconsistent  with  any- 
thing but  ownership.  When  you  apply  that  here,  you  have  the 
finding  of  the  jury  that  there  was  an  actual  sale,^  and  that  the 
purchaser  assumed  to  be  in  actual  possession.  He  permitted  the 
other  party  to  retain  the  horse.  All,  indeed,  passed  by  word  of 
mouth  ;  but  to  my  mind,  it  is  a  most  decisive  case  of  possession 
\i.  e.  actual  receipt],  and  one  in  which  the  vendor  has  lost  his 
claim  to  lien." 

Crompton,  J.,  distinguishes  a  little  more  clearly  the  acceptance 
and  the  actual  receipt,  thus  :  "  There  is  no  question  as  to  the  iden- 
tity ;  there  is  a  sale  of  the  horse,^  and  then  what  amounted  to  a 

1  Father  of  the  present  Lord  Chief  Jus-  ascertained  subject  of  the  sale,  —  the 
tice.  horse.     Hence,    is   the    clear    deduction, 

2  This,  called  "  an  acUuil  sale,"  really  when  there  is  "an  actual  sale "  of  specific, 
covers  the  no  less  actual  acceptance  re-  ascertained  goods,  that  very  actual  sale 
quired  ;  as  there  is  the  accepting,  the  se-  is  itself  the  acceptance  of  the  statute, 
lecting,  the  recognizing,  the  approving,  3  This  again  shows  that  this  —  the  as- 
the  taking  to,  as  the  very  subject  of  the  senting  to  the  specific  horse  —  fixes  the 
actual  sale,  at  an  agreed  price,  the  specific,  acceptance   of  the   identical   horse  as  the 


PART   VI.] 


THE   ACCEPTANCE. 


393 


loan  by  the  vendee ;  and,  under  that  loan,  the  vendor  kept  posses- 
sion of  the  horse.  That  is  a  possession  by  the  vendee.  The  case 
is  analogous  to  that  of  goods  warehoused.  I  go  to  the  warehouse- 
man with  tlie  seller,  and  say  to  him,  '  You  now  hold  these  goods 
for  me ; '  ^  the  warehouseman  then  becomes  the  bailee  of  the  pur- 
chaser, and  the  possession  of  the  warehouseman  becomes  that  of 
the  purchaser.  Mr.  Mellor  says,  and  he  would  succeed  if  he  could 
make  out  his  proposition,  that  in  no  case  can  the  vendor,  for  this 
purpose,  be  the  agent  for  the  vendee  ;  but  that,  I  think,  is  not  law. 
Elmore  v.  Stone  ^  shows  that.  In  the  one  case  we  have  a  bailment 
of  a  description  different  from  the  original  possession ;  here  we 
have  a  loan ;  but  in  each  case  the  possession  of  the  bailee  is  the 
possession  of  the  bailor.  It  would  be  dangerous  to  distinguish 
between  such  cases."  The  verdict  for  the  plaintiff  was  very  prop- 
erly sustained. 2 

In  our  chronological  examination  of  the  cases,  we  simply  take 
them  up  in  detail ;  and  we  find  that  case  after  case  only  the  more 
firmly  establishes  as  correct  the  principles  we  have  enunciated  in 
this  Fart. 

The  next  case  to  be  examined  is  Taylor  v.  Wakefield.^  Here 
there  was  a  verbal  agreement  for  the  sale  of  goods  for  upwards  of 


very  subject  of  the  sale.  All  that  is 
further  required  to  complete  the  sale  is 
the  actual  receipt,  which,  in  this  case, 
followed  the  acceptance. 

1  Here,  mark,  treating  the  actual  re- 
ceipt of  the  statute  just  as  an  actual  (not 
necessarily  manual,  here  constructive)  re- 
ceipt at  common  law. 

2  1  Taunt.  458. 

3  While  Marvin  v.  Wallis,  6  E.  &  B. 
726,  was  correctly  decided,  there  is,  as  we 
have  pointed  out,  much  in  the  reasoning 
of  the  judgment,  which  is  unsound.  The 
following  from  Coleridge,  J.,  is  furnished 
as  another  such  instance.  Following  the 
fallacy,  to  which  we  have  previously  re- 
ferred, involved  in  the  following,  "The 
statute  of  frauds  requires  an  actual  re- 
ceipt, which  implies  delivery  and  accept- 
ance," Coleridge,  J.,  adds:  "It  is  ad- 
mitted that,  if  there  be  an  actual  visible 
possession  in  the  vendee  for  a  single  mo- 
ment, that  is  enough ;  the  question  can- 
not turn  on  the  time.  It  must  also  be 
admitted  that  it  is  enough  if  a  third  party 
has  such  possession  for  the  vendee."  This, 
then,  might  be  fairly  said  to  mean  :  Ac- 
ceptance, as  well  as  the  reception,  and  its 
correlative,  delivery,  are  implied  by  the 
actual  receipt,  which  the  statute  requires  ; 
hence,  where  there  has  been  "  an  actual 
visible  possession  in  the  vendee  for  a 
single  moment,  it  is  enough,"  as  it  is  "if 
a  third  party  has  such  possession  for  the 


vendee."  This,  then,  w'ould  make  the 
actual  receipt  alone,  even  "for  a  single 
moment,"  by  the  vendee  or  by  some  one 
for  him,  fulfil  the  requirements  of  the 
statute  ;  the  absurd  result  of  confounding 
the  acceptance,  which  is  one  thing,  with 
the  actual  receipt  of  the  statute,  which  is 
quite  another.  But  myiiads  of  cases  cor- 
rectly hold  that  the  vendee  may  not  only 
be  in  "actual,  visible  possession  "  for  very 
many  moments,  but  yet  be  able  to  reject 
the  goods,  and  repudiate  the  contract. 
The  actual,  visible  possession  being  in  the 
vendee  does  not  vest  the  title  in  him, 
under  such  a  contract,  unless  the  posses- 
sion is  in  him,  as  owner ;  and  this  only, 
under  the  statute,  can  be  where  there  has 
been  not  only  an  actual  receipt  by  the 
vendee  as  such,  but,  also,  an  ec^ually  ac- 
tual acceptance  by  him,  in  his  capacity  as 
such  vendee.  It  is  by  just  such  unsound 
reasoning  as  that  of  Coleridge,  J.,  in  Mar- 
vin V.  Willis,  6  E.  &  B.  726,  733  ;  and  of 
Lord  Campbell  in  Bushel  v.  Wheeler,  8 
Jur.  532 ;  and  in  their  having  failed  to 
appreciate  the  difference  between  the  ac- 
ceptance and  the  actual  I'eceipt  of  the 
statute,  that  the  con.struction  of  the  stat- 
ute has  been  involved  in  the  confusion 
which  we  are  endeavoring,  we  trust  suc- 
cessfully, by  this  protracted  and  exhaust- 
ive investigation,  to  clear  away. 
<  6  E.  &  B.  765. 


394  COMMENTAPvIES   ON   SALES.  [BOOK   IV. 

£10  which  were  in  the  possession  of  the  vendee,  as  tenant  of  the 
premises  where  the  goods  were  ;  the  sale  being  on  the  terms  that 
the  o-oods  should  become  the  property  of  the  vendee  at  a  later 
date  on  payment  of  the  purchase-money.  Before  the  money  was 
paid,  which,  however,  was  tendered  by  the  vendee,  the  inchoate 
vendor  repudiated  the  contract.  Here,  the  vendor  had  never 
parted  with  his  lien  or  his  possession  as  owner,  the  possession 
being  in  the  vendee,  as  tenant  for  the  owner,  and  he  (the  vendee) 
never  got  possession  of  them  as  owner ;  before  their  actual  receipt, 
as  owner,  the  contract  having  been  repudiated  by  the  vendor. 
The  court  held,  following  Edan  v.  Dudfield,^  and  Marvin  v.  Wallis,^ 
that,  under  the  Statute  of  Frauds,  the  contract  was  not  "  good." 
Crompton,  J.,  who  had,  on  the  whole,  a  better  appreciation  of  the 
meaning  of  the  statute,  than  his  colleagues  of  the  Queen's  Bench, 
said  :  "  When  goods  are  sold  by  parol,  and  nothing  remains  to  be 
done  before  the  delivery,  if  the  goods  are  already  in  the  hands 
of  the  vendee,  he  may  take  to  them  under  the  contract,  and 
it  is  an  acceptance  and  receipt  by  the  authority  of  both  par- 
ties. It  is  the  only  way  in  such  cases  in  which  there  can  be  a 
delivery.  The  contract  is  binding  as  soon  as  the  bailee  changes 
his  character  and  holds  as  owner.  But  then  it  appears,  on  the 
facts  here,  that  by  the  contract  there  was  to  be  no  delivery  till  the 
price  was  paid  ;  and  it  appears  that,  when  the  price  was  tendered, 
before  any  possession  as  owner  was,  or  under  the  contract  could 
be  taken,  the  vendors  refused  the  money,  and  declared  the  con- 
tract not  binding.  If  we  held  that  it  was  sufficient  to  tender  the 
money  and  take  possession  afterwards,  it  would  be,  in  effect, 
holding  that  tlie  contract  was  binding  before  the  possession  was 
taken  ;  for,  unless  it  was,  the  subsequent  taking  of  possession  was 
tortious ;  and  it  is  admitted  on  all  hands  that  a  tortious  taking 
possession  cannot  make  the  contract  binding."  The  decision  of 
the  court  below  that  there  was  evidence  for  the  jury  of  an  accept- 
ance and  actual  receipt,  was  reversed.  It  is  a  sound  corollary 
from  tliis  well-decided  case  that  the  delivery  and  the  actual  re- 
ceipt are,  as  we  have  repeatedly  pointed  out,  correlative  terms 
under  the  statute ;  the  vendor  having,  in  effect,  to  be  a  party  to 
the  actual  delivery,  as  the  vendee  has  to  the  actual  receipt,  to 
satisfy  the  statute. 

Gardner  v.  Grout  ^  establishes  another  of  the  propositions  we 
have  stated  in  this  Part.  Here,  after  a  verbal  sale  of  specific 
goods  for  more  than  XIO,  samples  as  of  the  very  bulk  were  deliv- 
ered and  actually  received  by  the  vendee,  weighed  and  charged  to 

1  1  Q.  B.  302.  3  2  C.  B.  X.  s.  340. 

2  6  E.  &  B.  726. 


PART   VI.]  THE   ACCEPTANCE.  395 

him  as  a  part  of  the  goods  sold.  It  was  held,  following  Hinde  v. 
Whitehouse,^  that  there  had  been  an  acceptance  and  receipt  of  a 
part  of  the  goods.  But  in  Siinonds  v.  Fisher,^  where  there  had  been 
a  delivery  and  receipt  of  samples,  but  not  as  a  part  of  the  bulk, 
Wightman,  J.,  nonsuited  the  plaintiff  on  the  ground  that  there  had 
been  no  acceptance  and  actual  receipt  of  a  part  of  the  goods.^ 

A.  in  Coombs  v.  The  Bristol  &  Exeter  Ry.  Co.,*  verbally  agreed 
to  buy  of  B.  all  the  whalebone  he  could  procure  at  a  certain  price, 
to  be  sent  by  a  particular  railway,  A,  agreeing  to  pay  the  freight. 
Some  whalebone,  to  an  amount  exceeding  <£  10,  having  been  deliv- 
ered at  the  railway  station  by  B.,  consigned  to  A.,  and  having  been 
duly  invoiced  to  him,  was  lost  in  the  transit.  In  an  action  by  A, 
against  the  railway  company,  for  the  loss  of  the  whalebone,  it  was 
held,  following  Norman  v.  Phillips,^  that  the  receipt  of  the  railway 
was  not  the  actual  receipt  of  the  vendee,  and  that  there  was  no 
acceptance  of  the  goods,  inasmuch  as  the  vendee  had  the  right  of 
rejecting  them  after  inspection ;  and,  therefore,  that  the  plaintiff 
could  not  recover. 

As  there  was  here  the  purchase  of  an  ascertained  article,  "  all 
the  whalebone  he  could  procure,"  at  an  agreed  price,  there  would 
seem  to  have  been  good  ground  for  the  plaintiff's  claim  that  there 
had  been  —  though  the  receipt  of  the  carrier  is  not  the  actual  re- 
ceipt of  the  vendee  —  at  least  an  acceptance  by  the  vendee  ;  and 
had  the  whalebone  been  actually  received  by  the  vendee,  we  doubt 
whether,  after  that,  after  examination,  he  would  have  had  the 
right  of  rejecting  the  whalebone,  as  it  was  exactly  the  article 
which  he  had  purchased ;  the  specific  subject,  which  he  had  ac- 
cepted (not  received)  as  the  very  subject  of  the  contract. 

We  think  that  closely  analogous  to  this,  on  the  question  of  ac- 
ceptance, would  be  the  case  of  verbal  purchase  by  a  vendee,  of 
all  the  flour  in  a  warehouse,  or  all  the  goods  in  a  store,  at  an 
agreed  price ;  though  in  these  cases  the  goods  had  not  been  sub- 
jected to  special  examination.  Of  course,  in  these  cases,  the  ven- 
dee might  refuse  to  receive  the  goods,  and  there  would  be  no  good 

1  7  East,  5.o8.  wine  as  the  very  subject  of  the  sale  ;  and, 

2  Cited  in  Gardner  v.  Grout,  2  C.  B,  therefore,  was  an  acceptance,  or,  as  it  is 
X.  s.  at  p.  342.  called  in  the  case,  "  a  part  acceptance  "  of 

3  Simonds  v.  Fisher,  was  but  a  nisi  it.  But,  as  there  was  no  actual  receipt  of 
prius  case,  before  Wightman,  J.,  in  which  any  part  of  the  wine  which  was  so  ac- 
a  rule  nisi  to  set  aside  the  nonsuit  was  cepted,  the  exception  in  the  statute  was 
granted,  but  was  never  argued.  Using  still  unmet,  and  the  nonsuit  was  clearly 
the  usual  language  of  so  many  of  the  Eng-  right  on  the  ground  that  there  was  no 
lish  cases,  it  was  claimed  that  the  accept-  part  receipt,  not  on  the  ground  that  there 
ance  and  receipt  of  samples  of  wine  was  no  "part  acceptance."  See,  post, 
purchased  by  the  defendant  was  "a  jmrt  further  on  the  subject. 

acceptance  "  of  the  wine.     As  it  was  a  sale  *  3  H.  &  N.  510. 

of  specific  wine  by  sample,  we  think  that,  ^  14  M.  &  W.  277. 

in  itself,  was  an  assent  to  the  particular 


396  COMMENTARIES   ON   SALES.  [BOOK   IV. 

contract.  But  we  think  the  purchase  of  specific,  ascertained  goods 
is  an  "  acceptance  "  of  them ;  a  recognizing,  approving,  assenting 
to,  taking  to  tliem  as  the  very  subject  of  the  contract,  as  it  would 
have  been,  at  common  law,  before  the  statute. 

With  this  view,  it  would  seem,  also,  logically,  that  there  would 
be  no  escape  from  holding,  w^here  there  has  been  a  sale  of  specific 
goods,  by  sample,  and  there  has  been  no  delivery  of  any  part  of 
the  goods,  the  buying  the  goods  by  sample  is  itself  an  acceptance 
of  them  under  the  statute,  as  the  very  subject  of  the  sale.  And 
if,  on  their  actual  receipt,  they  should  conform  to  the  sample,  so 
as  to  be  the  very  subject  of  the  contract,  no  further  acceptance 
would  be  required  to  satisfy  the  statute,  and  tlie  vendee  would  not 
then  have  the  right,  after  their  actual  receipt,  arbitrarily  to  reject 
the  goods,  as  he  would  have  had  even  after  their  actual  receipt, 
if  there  had  not  been  the  previous  acceptance  of  them. 

It  is  to  be  regretted  that,  from  the  manner  in  which  the  terms 
"accept"  and  " actually  receive "  of  the  statute  have  been  con- 
founded, as  though  the  latter  involved  the  former,  in  many  cases 
where  the  force  and  effect  of  the  term  "  accept "  should  have  been 
considered,  the  peculiar  signification  of  the  word  as  not  being  neces- 
sarily involved  in  receiving  has  been  allowed  to  pass  without  notice. 
The  conclusion  would,  however,  seem  to  be  that  the  acceptance 
of  the  statute  is,  as  it  was  at  common  law,  necessarily  implied  or 
involved  in  every  purchase  of  specific  goods  in  which  at  common 
law  the  property  would  pass  by  virtue  of  the  sale  to  the  vendee. 

If  this  deduction  is  correct,  and  we  think  it  is,  it  is  but  conclud- 
ing, as  we  have  in  effect  all  along  in  this  Part  contended,  that  the 
accepting  of  the  statute  is  nothing  more  than  the  selecting,  speci- 
fying, recognizing,  assenting  to,  fixing  upon,  as  the  particular 
subject  of  the  sale,  the  goods  agreed  upon  as  such  subject  of 
sale  by  the  vendor  and  vendee,  the  minds  of  the  parties  being 
ad  idem  with  respect  to  the  particular  goods  which  are  the  sub- 
ject and  very  object  of  the  actual  sale. 

When  this  selecting,  specifying,  recognizing,  accepting,  assent- 
ing to,  taking  to  of  the  goods  as  the  subject  and  object  of  the 
sale  is  fixed,  then,  in  the  words  of  Heath  and  Chambre,  JJ.,  in 
Kent  V.  Huskinson,!  there  is  such  an  "  acceptance  as  is  an  affirma- 
tion of  the  particular  contract  made;"  and  when  there  is,  in  addi- 
tion to  this,  the  actual  receipt  of  the  statute,  then  you  have  the 
position,  as  named  by  Alderson,  B.,  in  Norman  v.  Phillips,^  where 
the  purchaser  has  precluded  himself  from  objecting  to  the  quality 
of  the  goods.^ 

3  B.  &  p.  233.  it  is,  there  are,  of  course,  cases  to  be  found 

»  14  M.  &  W.  277,  283.  where  the  distinction  between  the  accept- 

3  If  this  principle  is  sound,  as  we  think     ance  and  actual  receipt  of  the  statute  has 


PART    VI.] 


THE   ACCEPTANCE. 


.397 


We  proceed  to  examine  the  later  authorities. 
The  confusiou  of  the  Court  of  Queen's  Bench  on  the  subject 
still  continues.    lu  Hart  v.  Bush,^  the  defendant,  a  wine  merchant 


not  been  kept  iu  view,  aud  among  them 
are  some  of  the  cases  which  we  have  ex- 
amined, which  will  be  found  not  to  have 
been  correctly  decided.     In  Smith  v.  Sur- 
man,  9  B.  &  C.  561,  the  terms  "acceptance" 
and  "  actual  receipt  "  are  hopelessly  con- 
founded.    In  that  case  there  was  clearly 
no  actual  receipt ;    and,    independent  of 
this,  there  seems  to  have  been  no  such 
selection  or  recognition  of  the  particular 
goods  as  the  defined  object  of  the  sale  to 
amount  to  an  acceptance  of  any  specific 
goods.     The  trees  in  that  case  were  stand- 
ing, and  they  were,  clearly,  not  the  object 
of  the  sale,  there  having  been  no  accept- 
ance of  any  part  of  them  whatever  to  pre- 
clude an  objection  to  their  quality,  or  even 
to  form  the  basis  of  any  judgment  of  qual- 
ity.    So,  in  Johnson  v.  Dodgson,  2  M.  & 
W.  653,  the  term  "acceptance"  is  used, 
where   merely   "receipt"    is    meant.     In 
that  ca.se,  as  the  jury  found  that  the  goods 
did  conform  to  the  sample  by  which  they 
were   sold,   thus,   in   effect,   finding   that 
there  was  a  selecting,   an  approving,  an 
assenting,   a  taking  to  of  the  verj'  goods 
which,  by  sample,  were  actually  bought  ; 
and,  therefore,   an  accepting  of  them  as 
the  subject  of  the  contract,  the  defendant 
would  seem,   in  that  sense  of  the  word 
accepting,  to  have  accepted  them  within 
the  exception   in   the   statute.     But   the 
delivery  was  to  the  carrier,  and   not  to 
the  defendant  ;  so  there  was  no  actual  re- 
ceipt by  him,  as  he  refused  to  receive  the 
goods,  and  the  acceptance,  alone,  was  not, 
therefore,  sufficient.     The  case  of  Curtis 
V.  Pugh,  10  Q.  B.  Ill  (stated  by  \xi supra), 
which,  while  we  think  it  is  a  correct  de- 
cision   on    the    question    of    acceptance, 
where,  as  was  assumed  in  that  case,  there 
had    been    no    previous    acceptance,    or 
where  the  facts   connected  with  the  sale 
did  not,  in  themselves,  constitute  the  ac- 
ceptance of  the  statute,  is,  we  think,  as 
we   have  already  intimated,  on   the  facts 
in  that  case  a  very  doubtful  one.     In  this 
case   there  was  a  specific  purchase  of  a 
specified    quantity   of    Cox's    best    glue. 
After  the  glue  had  been  delivered  to  the 
defendant  and  actually  received  by  him, 
he  claimed  the   right  to  reject  it.     The 
jury  found  that  the  glue  was  exactly  what 
he  had  purchased  ;  and  hence  it  was  the 
identical   article   which   he   had   selected 
and  accepted  as  the  very  subject  and  ob- 
ject of  the  sale.     Notwithstanding  thi.s, 
he  could  have  refused  to  actually  receive 
it,   and   there  would  have  been  no  good 
contract  within  the  statute.     But,   after 


actual  receipt  of  it,  we  think  it  was  too 
late   then   for   him    to    reject    it   on   the 
ground  that  it  was  not  the  article  that  he, 
by  his  specific  purchase,  had  accepted  as 
the  very  subject  and  object  of  the  sale  ; 
when,  as  by  the  finding   of  the  juiy  it 
was  shown  to  be,  just  such  subject  and 
object  as  he,  by  his  specific  purchase,  had 
so  accepted.     The  acceptance  in  Saunders 
V.  Toj)p,  4  Ex.  390,  of  the  specific  sheep 
agreed  upon  as  the  subject  of  the  sale, 
was  made  perfectly  good  by  the  selecting 
them ;    thus   making   specific    sheep   the 
very  subject  of  the  sale.     Parke,   B.,  in 
this  case,  referring  to  the  holding  in  Bal- 
dey  V.  Parker,  2  B.  &  C.  37,  says  :    "  That 
case  is  an  authority  to  show  that  the  se- 
lecting particular  articles  does  not  amount 
to   a   receipt   within    the   statute,  but    is 
merely  an  agreement  that  the  property  in 
the  specific  articles  shall  pass."     And  we 
think  that  the  very  word    "accept"  in 
the  statute  is  used  precisely  in  this  sense, 
and  that  the  acceptance,   indejiendent  of 
the  actual  receipt  also  required,^  is  just 
that  acceptance  which  existed  at  common 
law  in  every  case  where  there  was  "  an 
agreement  that  the  property  in  the  specific 
articles   shall   pass  ; "    or   where,    as    (to 
again  quote  Parke,  B.,  in  the  same  case), 
"  at  common  law,  the  property  would  pass 
by  the  contract  of  bargain  and  sale,"  in 
"the  specific   articles."     (The  term  "  ac- 
cei)tance,"   under   the  statute,  goes  even 
further  than  this,  as  in  cases  where  the 
acceptance  and  actual  receipt  of  a  part  of 
the  goods  will  take  the  case  out  of  the 
statute,  so  that  the  contract  may  be  en- 
forced, even  though  the  property  in  the 
specific  goods  has  not  passed,  so  that  an 
action   as   for  goods   sold    aud    delivered 
would  lie.)     So,  in  Hunt  v.  Hecht,  8  M. 
&  W.  814,  although  there  was  an  actual 
receipt  of  the  goods,   because  there  was 
no  "acceptance"  of  them,  the  articles  re- 
'  ceived  not  corresponding  with  the  order, 
and,  therefore,  they  were  not  the  goods 
which  were  bought  at  all,  not  the  sjiecific 
subject  of  the  purchase,  and  no  acceptance 
of  them  as  such  subject  so  as  to  cause  the 
property  in  them  to  pass  at  common  law, 
independent  of  the  statute  ;    and  it  was 
held  that  there  was  no  good  sale.     And 
in  Simonds  v.  Fisher,  cited  in  Gardner  v. 
Grout,  2  C.  B.  N.  s.  340,  342,  there  was 
a  completed  sale  of  specific  goods,  by  sam- 
ple, at  an  agreed  price,  witliout  the  sam- 
ples being  given  to  the  vendee  as  a  part 
of  the  bulk  of  the  actual  goods  sold.     The 
statement  of  the  case  is,  as  we  have  seen, 


1  E.  B.  &  £.  494. 


398  COMMENTARIES    ON    SALES.  [BOOK   IV. 

at  Lancaster,  bought  from  the  plaintiff,  a  wine  merchant  in  Lon- 
don, a  hogshead  of  "  Superior  Jersey  Brandy  "  for  £Z1  10s.  The 
order  was  for  this  specific  brandy,  given  verbally  to  the  defend- 
ant's traveller,  the  defendant  directing  that  the  brandy  should  be 
sent  to  him  from  the  G.  wharf  at  London,  which  appeared  to  be 
the  only  wharf  in  London  whence  goods  were  shipped  for  Lancas- 
ter, and  from  which  goods  liad  previously  been  sent  by  the  plaintiff 
to  the  defendant.  The  brandy  purchased  was  sent  by  the  plain- 
tiff to  the  wharf,  and  the  wharfinger  shipped  it  in  a  vessel  for 
Liverpool  en  route  for  Lancaster.  The  vessel  seemed  to  have 
been  selected  by  the  wharfinger,  and  was  lost  between  London 
and  Liverpool.  The  defendant  refused  to  pay  for  the  brandy. 
In  an  action  for  the  price,  the  defendant's  counsel  ^  contended  tliat 
there  was  "  no  receipt "  of  the  brandy  so  as  to  satisfy  the  seven- 
teenth section  of  the  statute.  A  verdict  was  found  for  the  plain- 
tiff, with  leave  reserved  for  a  nonsuit,  or  verdict  for  the  defendant. 
On  the  argument,  the  terms  "  receipt,"  "  acceptance,"  "  actual  ac- 
ceptance," and  "  delivery,"  are  all  used  as  though  they  meant  but 
receipt ;  and  the  argument,  in  effect,  was,  agreeing  with  the  defend- 
ant's contention  in  the  court  below,  that  the  delivery  at  the  wharf 
was  not  the  actual  receipt  of  the  defendant.  The  court  held  that 
it  was  not,  the  judgment  of  Lord  Campbell,  C.  J.,  not  in  any  way 
touching  the  question  of  acceptance,  but  that,  rather,  whether  the 
delivery  at  the  wharf  was  a  receipt  by  the  vendee.  But  on  the 
argument  Lord  Campbell  does  use  the  word  "  acceptance,"  and, 
whether  accidentally  or  intentionally  (and  which  of  these  seems  just 
slightly  doubtful),  we  think,  in  this  instance,  he  uses  it  correctly. 
Referring  to  Morton  v.  Tibbett,^  he  says  :  "  In  Morton  v.  Tibbett 
the  vendee  took  a  sample,  and  directed  the  destination  of  the 
goods,  —  that  was  clearly  evidence  of  acceptance^  We  think  it 
was.  That  which  in  Morton  v.  Tibbett  was  held  to  be  evidence  of 
the  actual  receipt,  was  that,  a/^er  taking  the  sample,  and  directing 
the  destination  of  the  goods  (showing  an  acceptance  of  the  goods 
to  satisfy  the  statute,  which  became  conclusive  if  the  bulk  cor- 
responded with  the  sample),  he  treated  the  goods  as  his  own  by 
selling  them.  So,  here,  the  vendee  bought  specific  goods  and 
directed  the  destination  of  them,  thus  accepting  them  as  the  very 
subject  of  his  purchase,  and,  as  the  very  goods  which  he  had  ac- 

that  this  was  not  a  "  part-accepting "  of  ceipt   of  the   specific  goods  bought,  the 

the  goods.     But  all  that  it  means  is  that  purchaser  could  not  thereafter  reject  them 

there  was  no  part  receipt  of  the  goods,  the  if  they  corresponded  with  the  sample,  and 

sample  not  being  delivered  or  received  as  were,  therefore,  the  actual  goods  wliich  he 

a  part  of  the  very  bulk.     We  think  that  bad  accepted  as  those  to  be  delivered  to 

this  was  accepting  the  goods  as  the  subject  him  as  the  specific  subject  of  the  sale, 
of  the  sale  within  the  meaning  of  the  stat-  i  See  p.  495. 

ute,  and  if  followed  up  by  the  actual  re-  2  15  q_  -q   423, 


PART   VI.]  THE   ACCEPTANCE.  399 

cepted  as  the  subject  of  such  purchase  were  received  by  the 
wharfinger,  if  the  wharfinger  had  been  his  warehouseman,  or  his 
servant  to  actually  receive  the  goods  (certainly  he  was  not  to 
"  accept"  them),  then  as  he  had  himself  accepted  them,  the  actual 
receipt  by  himself,  through  his  warehouseman,  or  servant,  would 
have  satisfied  the  statute.  But,  unless  his  act  of  buying  specific 
goods  as  the  very  subject  of  his  purchase  was  an  acceptance  of 
them,  then  the  mere  actual  receipt  by  the  warehouseman,  even 
had  he  been  the  vendee's  own,  while  it  would  have  satisfied  the 
statute  as  regards  the  actual  receipt  required,  certainly  would  not 
have  satisfied  the  statute  with  reference  to  the  acceptance,  which 
is  also  required.  But  Lord  Campbell  treats  the  actual  receipt  as 
all  that  was  then  necessary.  Hence,  unless  he  meant  verbally  and 
literally,  that,  as  in  Morton  v.  Tibbett,^  he  says,  the  vendee's  taking 
a  sample,  and  directing  the  destination  of  the  goods,  "  was  clearly 
evidence  of  acceptance  "  (apart  from  the  actual  receipt,  which 
was  evidenced  by  other  and  later  acts)  ;  so,  in  Hart  v.  Bush,^  the 
defendant's  having  bought  specific  goods  at  an  agreed  price,  and 
having  directed  the  destination  of  them,  this  was  likewise  evidence 
of  their  acceptance,  entirely  apart  from  the  alleged  actual  receipt 
by  the  warehouseman ;  then  his  judgment  is  palpably  unsound,  as 
it  would  hold  that  the  carrier  could  both  receive  and  accept  for 
the  vendee,  which  generally  he  clearly  cannot  do,  even  though  the 
carrier  be  the  purchaser's  own  carrier,  so  as  to  make  his  receipt 
the  actual  receipt  of  his  principal,  the  purchaser. 

Lord  Campbell's  judgment,  in  extenso,  is  :  "  The  legislature  con- 
tinues to  maintain  section  17  of  the  Statute  of  Frauds ;  ^  and  I  do 
not  think  the  enactment  is  satisfied  by  the  facts  of  the  case.  All 
that  can  be  said  is  that  the  purchaser  here  named  the  wharf,  and 
that  there  was  a  deliver^/  [a  delivery,  mark !  the  correlative  of  re- 
ceipt, not  of  acceptance]  at  the  wharf.  I  think  that  where  there 
is  a  verbal  contract,  and  an  order  to  deliver  to  a  particular  carrier, 
a  delivery  to  that  carrier  does  satisfy  the  statute.  But  in  the 
present  case  there  was  a  delivery  at  the  wharf  only ;  the  wharf- 
inger had  only  to  see  that  the  goods  were  properly  put  on  the 
wharf  and  hoisted  on  board  ship." 

Literally,  this  exactly  meets  our  contention  as  to  the  meaning 
of  the  statute.  Thus,  "  where  there  is  a  verbal  contract"  {i.e., 
an  agreement  between  the  parties  as  to  specific  goods  sold),  so  as 
to  make  it  a  contract  (i.  e.,  a  concluded  contract  for  the  sale  of 
specific  goods,  such,  for  instance  —  and  for  instance  only  —  as 
at  common  law  would  pass  the  property  in  the  specific  goods 
without  a  transmutation  of  the   possession),  there  there   is   an 

^  15  Q.  B.  428.  8  This  with  a  kind  of  resigned  afianflfore. 

«  E.  B.  &  E.  494. 


1 


400  COMMENTARIES   ON   SALES.  [BOOK   IV. 

acceptance,  a  specifying,  a  recognizing,  a  taking  to,  as  the  very 
subject  of  the  contract,  the  goods  which  are  specifically  sold. 
Then,  when,  following,  accompanying,  or  preceding  this  accept- 
ance there  is  an  actual  receipt  (which  may  be  manual,  construc- 
tive, or  symbolical)  by  the  purchaser,  or  by  some  one  authorized 
by  him,  so  that  the  goods  are  in  his  actual  or  constructive  pos- 
session, discharged  of  the  vendor's  lien  and  of  the  right  of  the 
stoppage  in  transitu,  there,  we  think,  there  have  been  the  accept- 
ance and  the  actual  receipt  of  the  statute,  and  the  property  and 
the  possession  in  and  of  the  goods  are  in  the  vendee,  and  the 
exception  in  the  seventeenth  section  of  the  statute  is  satisfied. 

If  Lord  Campbell  really  meant  this  in  his  judgment  in  Hart  v. 
Bush,  then,  we  think,  he  was  entirely  right ;  and  if  he  did  not 
mean  it,  he,  then,  wrote  wiser  than  he  knew.  We  think  he  was 
at  least  literally  correct,  whether  this  was  accidental  or  not.  But 
in  tlie  case,  Coleridge,  J.,  uses  the  word  "  accept "  as  meaning 
"  receipt ;  "  and  Earle,  J.,  evidently  treated  the  question  as  being 
whether  or  not  the  delivery  at  the  wharf  was  an  acceptance  and 
actual  receipt  by  the  defendant,  when  he  says, ''  I  agree  that  the 
sending  to  the  wharf,  and  the  putting  on  the  wliarf,  does  not 
satisfy  the  words  '  accept '  and  '  actually  receive,'  however  absurd 
the  words  of  the  statute  may  be ; "  this  suggesting  the  admission 
that  the  judgments  of  the  Court  of  Queen's  Bench  on  the  subject 
were,  as  we  think  they  are,  based  on  the  erroneous  view  that  "  the 
words  of  the  statute "  are  "  absurd."  And  we  think  it  is  only 
on  their  own  assumption  that  the  words  are  absurd,  that  their 
"  absurd  "  construction  of  them  can  be  sustained.^ 

But  for  what  we  think  is  the  palpable  confusion  in  so  many 
of  the  English  cases,  Nicholson  v.  Bower  ^  would  be  a  most 
valuable  case  on  the  subject  of  "  acceptance  "  apart  from  the  sub- 
ject of  "  actual  receipt,"  which  (as  we  have  claimed  throughout 
the  whole  of  this  Part),  notwithstanding  the  lengthy  series  of 
English  cases  to  the  contrary,  are  essentially  different  things,  — 
the  "  acceptance  "  being  the  assent  (as  at  common  law),  as  an  act 
of  the  mind,  of  the  purchaser  to  a  specific  thing  as  being  the  very 
subject  of  the  contract  of  sale  and  purchase  which  he  has  made 
with  the  vendor ;  and  the  "  receipt,"  the  transmission  of  the  pos- 
session to  the  purchaser  by  such  acts  as  at  common  law,  by  a 
manual,  constructive,  or  symbolical  delivery,  would  vest  the  pos- 
session in  him. 

The  more   cases  we  examine,  whether  they  are   expressly  or 

1  Hart  V.  Bush,  is  also  reported  in  27  the  hopeless  manner  in  which  he  was  con- 

L.  J.    N.   s.    271.      The   report   of   Lord  founding   the   accepting    aud   the   actual 

Campbell's  judgment  there  differs  materi-  receiving  of  the  statute, 
ally  from  that  in  E.  B.  &  E.  494,  showing  2  j  £_  ^j  £_  172. 


I'ART    VI.]  THE    ACCEPTANCE.  401 

impliedly  decided  in  ignoration  of  the  distinction  we  have  made, 
the  more  thoroughly  we  are  satisfied  with  the  correctness  of  this 
distinction.  Assuming  that  the  distinction  is  correct,  it  has  been 
held,  and  we  think  with  unquestionable  correctness,  that  the 
acceptance  and  actual  receipt  of  a  bulk-sample  as  and  for  a  part 
of  the  very  goods  sold,  are  a  sufhcient  acceptance  and  actual 
receipt  of  a  part  of  the  goods  to  take  the  case  out  of  the  statute 
as  to  the  whole  of  tlie  goods  contracted  for ;  so  that  on  tiie  actual 
receipt  of  the  balance  of  the  goods  the  vendee  is  precluded  from 
objecting  to  them  if  they  accord  with  the  sample,  or,  in  other 
words,  if  they  are  the  very  goods  which  he  has  accepted  or 
assented  to  in  making  the  contract  for  the  purchase  of  goods 
based  on  the  sample,  which,  as  a  very  part  of  the  goods,  he  has 
actually  accepted  and  as  actually  received. 

But,  with  the  undoubted  soundness  of  these  decisions,  are  we 
not,  as  we  have  previously  intimated,  carried  farther  ?  If,  by 
the  acceptance  and  receipt  of  the  sample  as  a  part  of  the  very 
bulk  of  the  goods  sold  and  bought,  there  is  an  acceptance,  and 
also  an  actual  receipt  as  well,  of  some  part  of  the  goods  bought ; 
why,  if  there  is  an  acceptance  —  which  simply  means  an  assent 
(as  at  common  law),  as  an  act  of  tlie  mind,  to  the  very  goods  as 
the  particular  subject  of  the  sale  —  of  a  sample,  as  the  standard 
of  the  goods  bought,  which  is  not  a  part  of  the  very  bulk  sold ; 
why,  we  repeat,  is  this,  as  an  acceptance,  an  assenting  to,  of  the 
very  goods  sold  and  bought,  not  as  effectual  as  such  accejjtance 
merely^  whether  there  has  been  an  actual  receipt  or  not  ?  There 
is,  it  seems  to  us,  good  ground  for  thinking  that  it  is ;  and  that 
when  there  has  been  an  actual  receipt  of  the  whole  or  of  any 
part  of  the  goods,  which,  as  the  result  of  the  acceptance  and 
assent  of  the  purchaser  to  the  specified  and  agreed-upon  goods, 
have  been  so  sold,  the  requirements  of  the  statute  have  been 
met,  and  there  have  been  both  the  acceptance  and  the  actual 
receipt  which  the  statute  requires  to  make  the  contract  for  the 
sale  be  deemed  to  be  good,  which,  even  at  common  law,  it  could 
not  have  been,  without,  on  the  part  of  the  buyer,  his  acceptance 
or  assent  to  the  subject  as  the  very  subject  of  the  sale.^  But 
Nicholson  v.  Bower  ^  is  an  authority  expressly  to  the  contrary. 
But  so,  also,  in  effect,  are  other  cases  in  the  Court  of  Queen's 
Bench  ;  but  only  so  because  they  ignore  a  distinction  whicli,  in 
ignoring,  has  driven  the  Court  of  Queen's  Bench  to  the  confes- 
sion, in  effect,  that  under  their  holdings  the  statute  is  "  absurd  r"^ 

1  See  poxt  in  this  Part,  where,  under  ^  Pf,^  Erie,  J.,  in  Hart  v.  Bush,  E.  & 
the  latest  authority,  this  view  is  fully  sus-  B.  494,  498.  And  see  per  Lord  CanipljcU, 
tained.                                                               0.  J.,  in  s.  c.  27  L.  J.  N.  s.  Q.  B.  271,  and 

2  1  E.  &  E.  172.  in  previous  cases  cited  by  us  in  this  Part. 
VOL.  II.                                                26 


402  COMMENTARIES   ON   SALES.  [bOOK    IV. 

leading  to  the  inevitable  conclusion  that  if  (as  we  think  it  is  not) 
the  statute  is  not  absurd,  the  decisions,  which  are  based  and  built 
up  only  on  the  assumption  that  it  is  "absurd,"  must  themselves 
rather  come  within  the  designation  which  they  have  applied  to 
the  statute  itself. 

In  Nicholson  v.  Bower ^  there  was  a  purchase  by  sample  of 
141  quarters  of  wheat,  to  be  delivered  in  London.  The  wheat 
was  duly  shipped  by  the  vendor  to  the  vendees,  under  circum- 
stances which  it  was  conceded  amounted  to  an  actual  receipt  by 
the  vendees  of  the  specific  wheat  purchased  by  them,  the  posses- 
sion being  constructively  in  them,  —  being  held  for  them  by  the 
warehouseman,  and  the  transitus  being  at  an  end.  The  wheat  was 
really  equal  to  the  sample,  so  that  the  purchasers  had  actually 
received  the  141  quarters  of  wheat  which  was  the  specific  subject 
of  their  purchase  and  of  the  vendor's  sale.  The  usual  course  of 
business  of  the  warehousemen  in  warehousing  grain  was  to  keep 
it,  if  required,  for  fourteen  days,  free  of  charge ;  at  the  end  of 
which  time  it  was  taken  away  by  the  consignee,  or  delivered  to  liim 
by  the  warehousemen  at  his  expense.  It  is  also  usual  in  the 
corn  trade,  when  corn  is  warehoused  for  the  consignee,  before 
finally  removing  it,  to  take  a  sample  from  the  bulk  as  delivered 
at  the  warehouse,  and  compare  it  with  the  sample  by  which  it 
was  purchased.  In  this  case  the  purchasers  sent  their  carman 
for  the  bulk-sample,  which  they  received,  and  which  corresponded 
with  the  sample  under  which  they  purchased  the  goods.  Here, 
then,  if  an  actual  receipt  of  a  part  of  the  goods  purchased  were 
identical  with  the  acceptance,  so  that  the  actual  receipt  covered 
the  acceptance  as  well,  there  was  not  only  the  actual  receipt 
involved  in  the  goods  being  in  their  constructive  possession,  by 
their  being  held  for  them  by  their  own  warehouseman,  —  the 
right  of  stoppage  in  transitu  being  thus  gone,  —  but  there  was  also 
the  actual  receipt  of  a  part  of  the  goods  sold  by  their  obtaining 
manual  possession  of  bulk-samples  of  the  very  goods  which  they 
had  bought.  But,  after  taking  these  bulk-samples,  finding  them- 
selves in  a  state  of  insolvency,  they  declined  to  take  the  goods 
under  the  purchase;  and  the  vendor,  becoming  aware  of  their 
insolvent  state,  sent  to  the  warehouse  and  stopped  the  wheat, 
directing  the  warehousemen  to  hold  it  to  his  order ;  which  they 
accordingly  did.  On  an  issue  between  the  assignees  in  bank- 
ruptcy and  the  vendor,  the  Court  of  Queen's  Bench  held  that, 
notwithstanding  the  actual  receipt  of  the  wheat  by  the  vendee, 
there  was  no  acceptance  of  it  by  him. 

As  far  as  we  can  see,  there  is  only  one  possible  ground,  and 
1  1  E.  &  E.  172. 


PART   VI,]  THE   ACCEPTANCE.  403 

that,  we  think,  is,  at  best,  an  exceedingly  doubtful  one,  on  whicli 
the  case  of  Nicholson  v.  Bower  can  be  sustained.  This  brings  us 
to  anotlier  point  in  connection  with  the  seventeenth  section  of  the 
statute,  that  has  been  in  our  mind  all  through  this  discussion  of 
the  subject,  but  which  no  previous  case  has  even  remotely  touched. 
The  language  then,  is,  that  the  contract  shall  not  be  good  "  ex- 
cept the  buyer  shall  accept  part  op  the  goods  so  sold,  and  act- 
ually receive  the  same."  There  must  then  be  not  only  the  con- 
tract made  for  the  sale  and  purchase  of  the  goods,  but  the  buyer 
must  actually  receive  some  part  of  the  goods,  and  such  part  of  the 
yoods  must  be  received  with  acceptation  by  him ;  as  receiving  and 
accepting,  assenting,  appropriating,  recognizing,  taking  to  them 
as  a  part  of  the  very  subject  of  the  purchase.  Unless  he  does 
this,  even  though  he  may  have  agreed  or  assented  to,  or  accepted 
as  the  very  subject  of  the  sale,  the  whole  of  the  particular  goods, 
yet,  to  make  the  sale  good,  according  to  this  view,  there  must  be 
a  specific  acceptance  as  an  act  of  the  mind  of  the  very  part  of 
the  goods  which  he  receives.  Thus,  on  this  argument,  notwith- 
standing his  acceptance,  or  assent,  to  the  general  subject  of  the 
purchase,  unless  he  specifically  accepts  the  very  part  which  he 
actually  receives,  there  is  no  acceptance  of  the  part  which  he 
actually  receives,  if,  on  his  receipt  of  it,  he  rejects  it.  Thus, 
according  to  this,  there  may  be  an  acceptance  as  an  assent  to  the 
sale  of  specific  goods,  and  yet  this  not  meet  the  requirements  of 
the  statute ;  as  also  there  may  be  an  actual  receipt  of  the  whole 
of  the  goods,  and  the  vendee  may  arbitrarily  reject  them.  But, 
unless,  to  sustain  this  view,  both  of  these — i.e.,  the  acceptance 
and  receipt  —  unite  in  the  very  matter  which  is  received,  and 
there  is  the  actual  receipt  of  some  part  of  the  goods,  which  part 
is  not  only  received  by  the  vendee  but  is  also  accepted  by  him, 
—  that  is,  received  as  an  accepted  part  of  the  goods  bought, — 
there  is  no  good  sale. 

It  is  only  on  this  refining  of  the  statute  that,  we  think,  it  is  at 
all  possible  that  Nicholson  v.  Bower  ^  can,  if  at  all,  be  sustained. 
That  case  decides  that  there  may  be  an  actual  receipt  of  the  whole 
of  the  goods,  so  that  the  transitus  is  at  an  end,  and  the  right  of 
stoppage  in  transitu  gone ;  and  there  may  be  an  actual  receipt  of 
both  samples  of  the  goods,  which  correspond  with  the  samples 
from  which  the  purchase  was  made,  and  an  actual  receipt  of  the 
■whole  bulk  itself,  which  corresponds  with  the  original  sample  and 
with  the  bulk  sample  ;  and  yet  if  neither  the  bulk  sample,  nor  the 
bulk  itself,  was  received  with  acceptation,  so  as  to  have  the  accept- 
ance, as  the  appropriating  or  taking  to  of   some  "  part  of   the 

1  1  E.  &  E.  172. 


404  '  COMMENTARIES   ON   SALES.  [BOOK   IV. 

goods "  actually  received,  applied  to  that  very  part  of  the  goods 
which  has  been  received,  the  actual  receipt  is  not  sufficient,  for 
the  buyer  must  "  accept  part  of  the  goods  so  sold,  and  actually  re- 
ceive the  same,"  or  there  is  no  good  contract.  To  sustain  this 
position  it  might  be  claimed  that  if  this  were  not  the  meaning  of 
the  statute,  and  the  term  "  accept "  were  not  specifically  applied 
to  the  part  of  the  goods  which  have  also  to  be  received,  with  a 
specific  acceptance  as  showing  that  they  were  a  part  of  the  very 
goods  so  sold,  the  language  of  the  statute  more  properly  would 
have  been  "  except  the  buyer  accept  the  goods  and  actually  re- 
ceive some  part  thereof."  But,  instead  of  this,  the  language  is 
"  except  the  buyer  shall  accept  part  of  the  goods  so  sold,  and  act- 
ually receive  the  same  ;'^  showing  that  a  general  acceptance  or 
assent  to  the  goods  as  the  subject  of  the  sale  is  not  sufficient ; 
but  that  there  must  be  a  special  acceptance  of  the  part  of  the 
goods  sold  which  is  actually  received  ;  and,  therefore,  as  in  Nichol- 
son V.  Bower,!  where  there  has  not  been  a  specific  acceptance  of 
some  part  or  the  whole  of  the  goods  which  are  actually  received, 
there  is  no  good  contract,  notwithstanding  such  actual  receipt.^ 
Although  we  think  it  is  only  by  this  refining  of  the  statute  that 
any  ground  can  be  found  upon  which  Nicholson  v.  Bower  can  be 
sustained,  we  think  that  even  this  fails.  Where  there  is  an  accept- 
ance of  the  whole,  as  the  greater  includes  the  less,  there  is  an 
acceptance  of  the  part ;  and  there  may  be  an  acceptance  of  the 
part  where  tliere  is  not  an  acceptance  of  the  whole,  as  in  such 
cases  as  Elliott  v.  Thomas  ^  and  Scott  v.  The  Eastern  Counties 
Railway  Co.*  On  the  whole,  we  are  of  the  opinion  that  no  tenable 
ground  can  be  found  for  sustaining  Nicholson  v.  Bower,  and  that 
that  case  is  wrongly  decided. 

In  Currie  v.  Anderson  ^  it  was  held,  where  goods  of  the  value  of 
<£62  10s.  were  sold  by  the  plaintiffs  to  the  defendant,  and  shipped 
for  the  defendant  to  the  defendant's  consignees ;  but,  at  the  re- 
quest and  for  the  accommodation  of  the  defendant,  the  goods  were 
shipped  by  and  in  the  name  of  the  plaintiffs,  the  defendant  paying 
the  freight  on  the  goods  and  treating  them  as  liis  own,  that  this 
dealing  with  the  goods,  under  the  authority  of  Morton  v.  Tibbctt,^ 
was  evidence  from  which  the  jury  could  properly  find  that  the 
goods  had  been  accepted  and  actually  received  to  satisfy  the 
statute. 

The  Court  of  Exchequer  Chamber,  in  Castle  v.  Sworder,"    re- 

»  1  E.  &  E.  172.  4  12  M.  &  W.  33. 

2  See  infra,  p.  414,  and  n.  1,  where  this  ^  2  E.  &  E.  .592. 
point  is  again  adverted  to  and  disposed  of.  ^15  Q.  B.  428. 

3  3  M.  &  W.  170.  7  6  H.  &  N.  328  ;  30  L.  J.  N.  s.  Ex.  310. 


PART   VI.]  THE   ACCEPTANCE,  405 

versed  the  judgment  of  the  Court  of  Exchequer.^  The  decision 
in  the  court  below  proceeded  on  the  ground  that  there  could  not 
be  an  acceptance  and  actual  receipt  of  goods  of  over  the  value  of 
£10,  under  a  verbal  sale,  to  satisfy  the  statute,  where  the  goods 
remained  in  the  possession  of  the  vendor  with  his  lien  attaching. 
The  court  above  did  not  dissent  from  this  position  ;  but  they  held 
that,  where  the  vendor's  holding  of  the  goods  had  changed,  as  in 
Elmore  v.  Stone,^  and  in  similar  cases  cited  by  us,  supra,  that  the 
possession  of  the  vendor  was  simply  that  of  bailee,  and  that,  in 
such  case,  his  lien  was  gone,  and  that  Castle  v.  Svvorder  came 
within  this  principle ;  the  vendor  simply  holding  as  warehouse- 
man for  the  vendee  without  any  lien,  the  constructive  possession 
being  in  the  vendee,  who  could  maintain  trover  for  the  goods. 
Cockburn,  C.  J.,  stated,  in  this  case,  that  he  considered  the  terms 
"  acceptance  "  and  "  actual  receipt  "  were  equivalent.  We  think 
Nicholson  v.  Bower,^  no  matter  what  may  be  thought  of  that  deci- 
sion, effectually  disposes  of  that  contention.  There,  there  was  not 
only  an  actual  receipt  of  bulk  samples  of  the  goods  bought,  but 
the  goods  were  in  a  warehouse  in  the  name  of  the  vendee,  so  that, 
it  virtually  became  the  vendee's  own  warehouse,  and  so  that  there 
had  been  such  a  complete  transmission  of  the  possession  from  the 
vendor  to  the  vendee  that  the  right  of  stoppage  in  transitu  was 
gone.  And  yet  it  was  there  held,  no  matter  with  what  question- 
able correctness,  that  there  had  been  no  acceptance  of  the  goods ; 
and  yet  the  actual  receipt  was  so  clear  that  the  vendor's  lien  and 
right  of  stoppage  in  transitu  were  gone,  and  the  actual  receipt 
was  so  effective  and  conclusive,  that,  the  bulk  having  correspond- 
ed with  the  sample,  the  vendee  had  not  even  the  right  of  rejection. 
And  yet,  notwithstanding  such  an  unquestionable  actual  receipt 
as  there  was  in  Nicholson  v.  Bower,  it  was  there  held  that  there 
was  not  even  in  that  case  an  acceptance  of  the  goods  within  the 
exception  to  the  seventeenth  section  of  the  statute.  Surely,  the 
acceptance  and  the  actual  receipt  of  the  statute  are  very  far  from 
being  equivalent,  notwithstanding  the  host  of  English  cases  which, 
in  effect,  treat  them  as  such. 

Cockburn,  C.  J.,  makes  a  mistake,  too,  in  using  the  term  "ac- 
cept," treating  it  as  he  does  as  synonymous  with  receipt,  where 
he  refers  to  the  rule  "  that  where  a  person  chooses  to  accept  [?  re- 
ceive] goods  without  exercising  his  right  to  inspect  them  he 
waives  liis  right  to  reject  them,  and  must  be  taken  to  have  ac- 
cepted [using  the  word  correctly  here]  them  without  examina- 
tion."    The   rule   itself   will   show  the  distinction  between  the 

1  Castle  V.   Sworder,  5  H.  &  N.  281  ;  21  Taunt.  4.'')8. 

29  L.  J.  N.  s.  Ex.  235.  »  1  E.  &  E.  172. 


406  COMMENTARIES   ON   SALES.  [BOOK   IV. 

acceptance  and  the  receipt,  as  it,  virtually  in  terms,  shows,  that 
there  may  be  au  actual  receipt,  and  an  implied  acceptance,  where 
there  have  been  laches  on  the  part  of  the  vendee  after  the  actual 

receipt. 

As  we  have  seen  by  the  decision  in  Nicholson  v.  Bower,i  the 
statement  which  was  made  by  Cockburn,  C.  J.,  in  Castle  v. 
Sworder,2  that  the  terms  "  accept "  and  "  actually  receive  "  are 
equivalent,  and  which  statement  has,  in  effect,  as  we  have  shown, 
been  reiterated  and  acted  on  by  so  many  judges  in  England,  of 
very  high  standing,  is  inaccurate,  as  in  Nicholson  v.  Bower  there 
was  not  only  a  constructive  receipt  of  the  whole  of  the  goods,  which 
was  so  "  actual "  that  the  right  of  stoppage  in  transitu  had  been 
extinguished,  —  the  possession  was  so  entirely  out  of  the  vendor 
and  his  carrier,  —  but  there  was  also  the  "actual"  receipt,  the 
"  manual  prehension,"  of  a  very  part  of  the  goods  sold,  in  the  bulk 
samples  which  were  received  by  the  vendee ;  and  yet,  in  that  case, 
it  was  held  that  there  was  no  acceptance  of  the  goods,  the  effect 
of  the  holding  being  that  there  was  no  prior  acceptance,  and  that 
the  receipt  of  the  goods  not  being  with  the  purpose  of  accepting 
them,  —  of  recognizing,  appropriating,  and  taking  to  them  as  the 
accepted  subject  of  the  contract, —  there  was  no  acceptance. 

Now,  in  Cusack  v.  Robinson,^  which  is  a  case  on  the  construc- 
tion of  the  statute  of  the  highest  importance,  it  is  shown  that 
there  may  be  an  acceptance  within  the  statute,  whether  or  not 
there  have  been  an  actual  receipt  of  the  goods,  and  entirely  inde- 
pendent of  this  fact.  This  case  considered  with  Nicholson  v.  Bower  ^ 
is  an  extremely  important  one  on  the  subject  of  acceptance. 

Tlie  facts  in  Cusack  v.  Robinson  were  that  the  defendant,  a 
London  merchant,  called  on  the  plaintiffs,  October  24,  1860,  at 
Liverpool,  and  said  he  wanted  to  buy  from  150  to  200  firkins  of 
Canadian  butter.  He  then  went  witli  one  of  the  plaintiffs,  and 
was  shown  a  lot  of  156  firkins  of  the  butter,  which  he  then  had  an 
opportunity  of  inspecting,  and  did  open  and  inspect  six  firkins  of 
the  lot.  After  this  they  examined  other  butter,  which  did  not 
suit  the  defendant.  At  a  later  period  of  the  same  day  the  plain- 
tiffs and  the  defendant  made  a  verbal  agreement  by  which  the 
defendant  agreed  to  buy  the  specific  lot  of  156  firkins  at  77s.  per 
cwt.  When  the  price  had  been  agreed  on,  the  defendant  took  a 
card  on  which  his  own  name  and  address  in  London  were  written, 
and  wrote  on  it  "  156  firkins  butter  to  be  delivered  at  Fenning's 
Wharf,  Tooley  Street."  He  gave  this  to  the  plaintiffs,  and  at 
the  same  time  said  that  his  agent,  C,  at  Liverpool,  would  give 

1  1  E.  &  E.  172.  8  1  B.  &  S.  299. 

2  6  H.  &  N.  828,  at  p.  835.  <  1  E.  &  E.  172. 


I 


PART   VI.]  THE   ACCEPTANCE.  407 

directions  how  the  goods  were  to  be  forwarded  to  the  defendant  at 
Fenuing's  Wharf.  Tiiese  acts,  independent  of  tlie  question  of  ac- 
tual receipt,-were  held  to  be  an  acceptance  within  the  exception  of 
the  statute,  of  the  specific  156  firkins  of  butter.  At  this  stage  of 
the  case,  certainly,  there  was  no  actual  receipt  of  the  butter.  Sub- 
sequently, by  C.'s  directions,  the  plaintiffs  delivered  the  butter  to 
P.  &  Co.'s  carts,  to  be  forwarded  from  Fenning's  "Wharf  to  tlie 
defendant.  The  plaintiffs  sent  an  invoice  dated  October  25, 1860, 
to  the  address  on  the  defendant's  card.  The  receipt  of  this  was 
acknowledged.  On  October  27  the  plaintiffs,  in  Liverpool,  re- 
ceived a  telegram  from  the  defendant,  in  London,  in  effect  assert- 
ing that  the  butters  had  been  sold  by  the  plaintiffs  subject  to  a 
warranty,  but  that  they  were  not  equal  to  sample,  and,  therefore, 
would  be  returned.  The  plaintiffs  denied  that  there  was  a  war- 
ranty, and  refused  to  receive  the  butter  back.  In  an  action  for 
the  price,  it  was  proved  that  the  proprietors  of  the  wharf  had  a 
butter  warehouse  which  was  used  by  their  customers ;  that  the 
defendant  had  used  the  warehouse  for  fifteen  years,  and  was  in 
the  habit  of  keeping  his  butters  there  till  he  sold  them  ;  and  that 
on  October  26  P.  &  Co.  had  delivered  a  part  of  the  156  firkins  in 
question  at  the  warehouse,  and  delivered  the  residue  on  the  morn- 
ing of  October  27.  The  witness  could  not  state  whether  any  one 
came  to  the  warehouse  to  inspect  the  butter  or  not ;  but  he  proved 
that  it  was  delivered  up  by  Penning  to  P.  &  Co.  under  a  delivery 
order  from  the  defendant  dated  October  27.  The  statute  was 
relied  on,  but  the  jury  found  for  the  plaintiffs.  The  court  held 
that  the  evidence  established  an  acceptance  and  actual  receipt  of 
the  butter. 

The  head-notes  of  the  reporter,  corrected,  are :  1.  In  order  to 
satisfy  the  statute  there  must  be  both  an  acceptance  of  the  goods, 
or  part  of  them,  and  an  actual  receipt  of  them  (or  part  of  them). 
2.  In  order  to  satisfy  the  statute  it  is  not  necessary  that  the 
acceptance  of  the  goods  should  follow  or  be  contemporaneous 
with  the  receipt  of  them;  an  acceptance  prior  to  the  receipt 
will  suffice. 

On  the  question  of  acceptance,  counsel  put  this  case :  "  There 
is  a  distinction  between  the  cases  of  a  purchase  of  specific  goods 
and  of  goods  which  are  in  bulk  and  not  ascertained.  Suj)i)Ose 
a  man  goes  into  a  shop  and  says :  '  I  buy  that  chattel ;  send  it  to 
such  a  place,  or  give  it  to  a  porter,'  and  afterwards  receives  it,  and 
exercises  an  act  of  dominion  over  it,  he  has  done  everything  the 
statute  requires  to  constitute  an  acceptance  and  receipt."  Here 
the  buying  of  the  s])ecific,  ascertained  chattel  would  be  an  accept- 
ance of  it,  and  would  precede  the  actual  receipt.     So,  Hill,  J.,  on 


408 


COMMENTARIES   ON   SALES. 


[book  IV. 


the  argument,  put  this  case:  "A  bargain  and  sale  between  ven-^ 
dor  and  vendee  valid  in  all  respects  except  for  the  Statute  of 
Frauds ;  goods  sent  by  vendor,  under  the  direction  of  vendee  to 
warehouse-keeper  selected  and  nominated  by  vendee ;  vendor 
parted  with  his  lien,  and  the  transitus  at  an  end.  Do  these 
facts  constitute  an  acceptance  and  actual  receipt  within  the 
meaning  of  the  seventeenth  section  of  the  Statute  of  Frauds  ? " 
Here  Hill,  J.,  puts  exactly  the  case  of  Cusack  v.  Robinson,^  which 
case  answers  his  question  in  the  affirmative.  To  make  a  bargain 
and  sale  between  the  vendor  and  vendee  good  at  common  law 
there  must  be  the  sale  of  specific,  ascertained  goods,  and  hence, 
by  Cusack  v.  Robinson,  this  much  is  settled,  that  the  buying  of 
specific,  ascertained  goods  is  an  acceptance  of  them. 

Blackburn,  J.,  to  whom  we  have  frequently  referred  as  one  of 
the  very  ablest  of  the  English  judges,  and  who,  we  think,  if  he 
were  now  rewriting  his  generally  excellent  little  work  on  Sales, 
would  in  some  respects  essentially  alter  it,  in  delivering  the  judg- 
ment of  the  court  in  Cusack  v.  Robinson,-  dealing  with  Nicholson 
V.  Bower,3  says  of  it :  "  The  141  quarters  of  wheat  were  sent  by  a 
railway,  addressed  to  the  vendees.  They  arrived  at  their  destina- 
tion, and  were  there  warehoused  by  the  railway  company  under 
circumstances  that  might  have  been  held  to  put  an  end  to  the 
unpaid  vendor's  rights.  But  the  contract  was  not  originally  a 
sale  of  specific  wheat,  and  the  vendees  had  never  agreed  to  take 
those  particular  quarters  of  wheat.  On  the  contrary,  it  was 
sliown  to  be  usual,  before  accepting  wheat  thus  warehoused,  to 
compare  a  sample  of  the  wheat  with  the  sample  by  which  it  was 
sold ;  and  it  appeared  that  the  vendees,  knowing  that  they  were 
in  embarrassed  circumstances,  purposely  abstained  from  accept- 
ing the  goods,  and  each  of  the  judges  mentions  that  fact  as  the 
ground  of  their  decision."     And,  referring  to  the  language  of 

*  As  in  a  bargain  and  sale  by  sample 
at  common  law,  and  a  delivery  of  the 
identical  goods  sold,  so  that  the  vendor 
has  parted  with  his  lien  and  the  transitus 
is  gone,  there  is  a  perfectly  good  accept- 
ance and  actual  receipt  of  them  at  com- 
mon law ;  equally  so  is  there  under  the 
statute,  which  simply  adopts  the  com- 
mon-law terms,  "accept"  and  "receive," 
in  their  strictly  technical  sense.  Thus, 
ou  tills  principle,  Cusack  v.  Robinson,  1 
B.  &  S.  299,  being  well  decided,  mani- 
festly, Nicholson  v.  Bower,  1  E.  &  E. 
172,  was  wrongly  decided,  the  effect  in 
this  latter  case  of  the  acceptance  by  the 
very  act  of  buying  spei'ific  goods  being 
ignored.  See  Baldey  v.  Parker,  2  B.  &  C. 
37,  where  there  was  an  acceptance  of 
specific  goods  sold,  but  no  actual  receipt 


of  them.  And  in  Bushel  v.  Wheeler,  8 
Jur.  532,  the  language  of  Lord  Denman, 
C.  J.,  is  :  "  The  purchaser  may  depute 
another  person  to  exercise  a  judgment  for 
him  as  to  the  quality  of  the  goods,  or  he 
may  rely  upon  the  judgment  and  integrity 
of  the  manufacturer  from  whom  he  orders 
the  goods.  In  these  cases,  it  seems  to  me, 
there  may  be  an  acceptance  within  the 
statute  without  an  actual  manual  receiv- 
ing." This  language  would  have  been 
still  more  significant  but  for  the  loose 
manner  in  which  Lord  Denman,  as  well 
as  so  many  other  of  the  English  judges, 
was  in  the  habit  of  using  the  terms  "  ac- 
cept "  and  "receive"  as  interchangeable 
merely. 

2  1  B.  &  S.  299,  307. 

3  1  E.  &  E.  172. 


PART   Vr.]  THE   ACCEPTANCE.  409 

Holroyd,  J.,  in  Baldey  v.  Parker  :  ^  "  Upon  a  sale  of  specific 
goods  for  a  specific  price,  by  parting  with  the  possession  tlie  seller 
parts  with  his  lien.  The  statute  contemplates  such  a  parting  with 
the  possession  ;  and,  therefore,  so  long  as  the  seller  preserves  his 
control  over  the  goods,  so  as  to  retain  his  lien,  he  prevents  the 
vendee  from  accepting  and  receiving  them  as  his  own,  within 
the  meaning  of  tiie  statute;"  Blackburn,  J.,  says  of  this:  "The 
principle  here  laid  down  is  that  there  cannot  be  an  actual  receijpt 
by  the  vendee  so  long  as  tlie  goods  continue  in  the  possession  of 
the  seller,  as  unpaid  vendor,  so  as  to  preserve  his  lien ;  and  it  has 
been  repeatedly  recognized.  But  though  the  goods  remain  in  the 
personal  possession  of  the  vendor,  if  it  be  agreed  between  the 
vendor  and  the  vendee  that  the  possession  shall  thenceforth  be 
kept,  not  as  vendor,  but  as  bailee  for  the  purchaser,  tlie  right  of 
lien  is  gone,  and  then  there  is  a  sufficient  receipt  to  satisfy  the 
statute." 

A.nd,  dealing  with  Cusack  v.  Robinson,^  Blackburn,  J.,  says : 
"  In  the  present  case  there  was  ample  evidence  that  the  goods, 
when  placed  in  Fenning's  Wharf,  were  put  under  the  control  of 
the  defendant,  to  await  his  further  directions,  so  as  to  put  an  end 
to  any  riglit  of  the  plaintiffs  as  unpaid  vendors,  as  much  as  the 
change  in  the  nature  of  the  possession  did  in  the  cases  cited. 
There  was  also  sufficient  evidence  that  the  defendant  had  at 
Liverpool  selected  these  specific  156  firkins  of  butter  as  those 
which  he  then  agreed  to  take  as  his  property  as  the  goods  sold, 
and  that  he  directed  those  specific  firkins  to  be  sent  to  London. 
This  was  certaiyily  evidence  of  an  acceptance  ;  and  the  only  remain- 
ing question  is,  whether  it  is  necessary  that  the  acceptance  should 
follow,  or  be  contemporaneous  with  the  receipt,  or  whether  an 
acceptance  before  the  receipt  is  not  sufficient.  .  .  .  The  intention 
of  the  legislature  seems  to  have  been  that  the  contract  should  not 
be  good  unless  partially  executed ;  and  it  is  partially  executed  if, 
after  the  vendee  has  finally  agreed  on  the  specific  articles  which 
he  is  to  take  under  the  contract,  the  vendor,  by  the  vendee's  direc- 
tions, parts  with  the  possession,  and  puts  them  under  the  control 
of  the  vendee,  so  as  to  put  a  complete  end  to  all  the  rights  of  the 
unpaid  vendor  as  such.  We  think,  therefore,  that  there  is  nothing 
in  the  nature  of  the  enactment  to  imply  an  intention,  which  the 
legislature  has  certainly  not  in  terms  expressed,  that  an  accept- 
ance prior  to  the  receipt  will  not  suffice.  There  is  no  decision 
putting  this  construction  on  the  statute,  and  we  do  not  think  we 
ought  so  to  construe  it." 

1  2  B.  &  C.  37,  stated  by  us  supra.  2  1  B.  &  S.  299,  at  pp.  308-310. 


410  COMMENTARIES    ON   SALES.  ,  [BOOK   IV. 

The  principle  as  to  acceptance  decided  in  Cusack  v.  Robinson^ 
was  recognized  and  acted  on  in  The  Bog  Lead  Mining  Co.  v.  Mon- 
tao-ue,2  where  the  question  came  up  as  to  an  acceptance  of  stock 
under  the  English  Joint  Stock  Companies'  Act,  1856.^  By  that 
act  it  is  provided  that  "  no  person  shall  be  deemed  to  have  ac- 
cepted any  share  in  the  company  unless  he  has  testified  his 
acceptance  thereof  by  writing  under  liis  hand  in  such  form  as  the 
company  from  time  to  time  directs  ; "  and  section  19  enacts  that 
"  every  person  who  has  accepted  any  share  in  a  company  registered 
under  this  act,  and  whose  name  is  entered  in  the  register  of  share- 
holders, and  no  other  person,  .  .  .  shall,  for  the  purposes  of  this 
act,  be  deemed  to  be  a  shareholder."  The  defendant  in  this  case 
paid  the  necessary  deposit,  and  filled  up,  signed,  and  sent  to  the 
directors  of  the  company  their  printed  form  of  application  for 
shares,  thus :  "  Having  paid  to  the  Bank  of  London  to  your  credit 
.£5,  being  a  deposit  of  os.  per  share  on  twenty  shares  in  the  above 
company,  I  request  you  to  allot  me  that  number  of  shares ;  and 
I  hereby  agree  to  accept  the  same,  and  undertake  to  pay  the 
amount  of  calls  that  may  be  made  thereon,  in  accordance  with 
the  company's  act  of  incorporation."  The  company  allotted  the 
defendant  the  number  of  shares  applied  for,  and  his  name  was 
entered  on  the  register  of  shareholders,  and  he  paid  two  calls 
upon  the  shares  so  allotted  him  ;  but  he  never  testified  his  accept- 
ance of  the  shares  "  in  writing  under  his  hand  "  otherwise  than 
by  signing  the  letter  of  application,  and  the  company  never  "  di- 
rected "  any  other  form.  The  court,  following  Cusack  v.  Robin- 
son *  as  to  an  acceptance  to  satisfy  the  Statute  of  Frauds,  said : 
"  It  may  be  that,  in  the  case  of  a  contract  for  the  purchase  of 
unascertained  property  to  answer  a  particular  description,  no  ac- 
ceptance can  be  properly  said  to  have  taken  place  before  the  pur- 
chaser has  had  an  opportunity  of  rejection.  In  such  a  case  the 
offer  to  purchase  is  subject  not  only  to  the  assent  or  dissent  of 
the  seller,  but  also  to  the  condition  that  the  property  to  be  deliv- 
ered by  him  shall  answer  the  stipulated  description.  A  right  of 
inspection  to  ascertain  whether  such  condition  has  been  complied 
with  is  in  the  contemplation  of  both  parties  to  such  a  contract ; 
and  no  complete  and  final  acceptance,  so  as  irrevocably  to  vest 
the  property  in  the  buyer,  can  take  place  before  he  has  exercised 
or  waived  that  right.  In  order  to  constitute  such  a  final  and 
complete  acceptance,  the  assent  of  the  buyer  should  follow,  not 
precede,  that  of  the  seller.      But  where  the  contract   is  for  a 

1  1  B.  &   S.  299  ;    s.  c.   7  Jur.  N.  s.  Brunswick  Railway  Co.  v.  Mngj^eridge,  4 

5^2-  H.  &  N.  160,  58n,  under  the  same  act. 
z  10  C.  B.  N.  s.  481.  «  1  B.  &  S.  299. 

3  19  &  20  Vic.  c.  47.      See  the  New 


PART    VI.]  THE   ACCEPTANCE,  411 

specific,  ascertained  chattel,  the  reasoning  is  altogether  different. 
Equally  where  the  offer  to  sell  and  deliver  has  been  first  made  by 
the  seller  and  afterwards  assented  to  by  the  buyer,  and  where  the 
offer  to  buy  and  accept  has  been  first  made  by  the  buyer  and 
afterwai'ds  assented  to  by  the  seller,  the  contract  is  complete  by 
the  consent  of  both  parties,  and  it  is  a  contract  the  expression 
of  which  testifies  that  the  seller  has  agreed  to  sell  and  deliver, 
and  the  buyer  to  buy  and  accept,  the  chattel.  And,  indeed,  it  has 
been  expressly  decided  that,  in  this  latter  case,  the  Statute  of 
Frauds  may  be  satisfied  by  an  acceptance  preceding  the  delivery. 
Cusack  V.  Robinson."  ^ 

The  distinction  between  the  acceptance  and 'the  actual  receipt 
of  the  statute  is  very  marked  in  Simmonds  v.  Humble.^  There 
hops  were  sold  by  sample,  and  before  prompt  day  the  buyer's 
foreman  attended  at  the  warehouse  of  the  seller's  factors  to  see 
them  weighed,  compared  each  pocket  with  the  sample,  and  ad- 
justed allowances  on  some  which  he  objected  to.  The  question 
was  left  to  the  jury  whether  or  not  there  had  been  an  acceptance 
of  the  hops,  under  the  contract,  to  satisfy  the  statute,  no  point 
having  been  made  whether  or  not  there  was  a  sufficient  recei})t. 
It  was  held  that  there  was  an  acceptance,  Williams,  J.,  saying: 
"As  to  the  acceptance,  the  question  is  whether  there  was  any 
evidence  upon  which  the  jury  might  properly  be  directed  that 
there  had  been  a  sufficient  acceptance.  I  think  there  was.  After 
the  making  of  the  contract,  there  was  not  only  a  verification  of 
the  bulk  by  comparison  with  the  sample,  but  a  weighing  and  ap- 
proval by  the  agents  of  both  parties.  Add  to  this  the  evidence  of 
the  witness  who  stated  that  he  never  knew  of  an  instance  of  a 
contract  having  been  thrown  up  after  this  ceremony  has  been 
gone  through."  And  Byles,  J. :  "  As  to  acceptance,  the  hops 
were  compared  with  the  samples  and  weighed,  and  the  allowances 
settled  on  certain  of  the  pockets  which  were  objected  to, —  deduc- 
tions from  the  price  to  be  paid.  I  observe  also  that  there  was 
evidence  that,  by  the  usage  of  the  trade,  after  the  hops  had  been 
weighed  and  approved,  objections  are  no  longer  heard.  It  is 
clear,  therefore,  that  there  was  an  acceptance."  The  court  also 
dealt  with  the  question  independently  whether  there  had  been  or 
not,  also,  an  actual  receipt.  And  they  held  that  as,  in  the  case, 
the  warehouseman  where  the  hops  were  examined  and  weighed 
became,  as  soon  as  the  sale  was  perfected,  the  bailee  for  the 
buyers,  there  had  also  been  an  actual  receipt  to  satisfy  the  stat- 
ute,—  Erie,  C.  J.,  and  Keating,  J.,  concurring  in  the  judgment  on 
both  points, 

1  1  B.  &  S.  299  ;  7  Jur.  N.  s.  542.  ^  13  c.  B.  N,  s.  258. 


412  COMMENTARIES   ON   SALES.  [BOOK   IV. 

Bramwell,  B.,  in  Bowes  v.  Pontifex,^  refers  to  the  question  of 
acceptance  under  the  Statute  of  Frauds,  as  being  "  one  of  the 
most  difficult  questions  in  the  law;"  and  says,  applicable  to  the 
case  where  the  goods  have  been  received  prior  to  acceptance, 
very  correctly  :  "  Certainly,  unless  '  accept '  means  no  more  than 
'  receive '  (  as  surely  it  must,  for  otherwise  the  word  '  deliver ' 
would  of  itself  have  sufficed),  acceptance  must  mean  some  act  or 
conduct  on  the  part  of  the  buyer  indicating  an  intention  to  retain 
the  goods,  or  such  as  reasonably  to  lead  the  seller  to  suppose  so."  ^ 
In  this  case,  there  was  a  verbal  contract  on  April  11,  for  the  sale 
and  purchase  of  a  quantity  of  lead  ashes,  between  the  plaintiffs 
and  defendants,  which  were  delivered  on  the  12th  ;  there  having 
been  a  previous  sale  of  a  quantity  of  lead  ashes  to  the  defendants. 
The  delivery  of  these  sold  on  the  11th  was  made  on  the  12th ; 
the  defendants  having  leave  to  assay  the  ashes,  which  were  sold 
to  be  equal  to  the  previous  lot.  On  April  22,  the  plaintiffs  were 
advised  that  the  last  lot  was  not  equal  to  the  previous  lot,  and 
replied,  offering  an  allowance  ;  but,  after  some  further  correspond- 
ence, the  defendants  refused  to  accept  the  ashes  on  any  terms. 
The  effect  of  the  jury's  finding  was  that  the  ashes  had  not  been 
repudiated  within  a  reasonable  time,  and  that  an  acceptance  by 
the  defendants  must  be  presumed  from  their  delay  in  not  liaving 
repudiated  them  sooner  after  their  receipt.  The  finding  was  not 
disturbed  on  the  question  of  law  involved  in  the  case. 

In  Barnett  v.  Farley ,3  where  goods  sold  by  a  verbal  contract 
were  received,  it  was  held  that,  to  satisfy  the  statute,  there  must 
be  such  an  acceptance  of  them  by  the  buyer  as  to  be  a  recognition 
by  him  that  they  were  the  goods  which  he  has  bought ;  that,  while 
there  must  not  be  such  an  acceptance  as  would  preclude  the  buyer 
from  making  a  subsequent  complaint,  there  must  be  such  an  ac- 
ceptance as  to  show  that  he  recognizes  a  compulsion  to  take  the 
articles  delivered  to  him  under  a  contract  for  the  sale  of  them.* 

1  3  F.  &  F.  739,  742.  Wickersham,  4  W.   &  S.   100  ;  Shemer- 

2  111  Haiilmau  v.  Bellhouse,  9  M.  &  horn  v.  Loines,  7  Johns.  311  ;  Porter  v. 
W.  596,  where  a  question  arose  as  to  Talcott,  1  Cow.  359.  See  further  as  to  ac- 
whether  parties  had  accepted  a  bill  of  ceptance,  Evans  v.  Powis,  1  Ex.  601  ; 
exchange  in  payment  for  goods  in  sat-  Curlewis  v.  Clark,  3  Ex.  37«  ;  Bainbridge 
isfaction  for  the  goods  which  had  been  v.  Lax,  9  Q.  B.  819  ;  Moss  v.  Sweet, 
received  by  them,  it  was  held  that  ac-  16  L.  T.  Q.  B.  441  ;  Uey  v.  Frankenstein, 
ceptance  in  satisfaction  must  be  an  act  8  Scott,  N.  R.  839  ;  Curtis  v.  Pu<:h,  10 
of  the  will  in  the  party  receiving ;  Alder-  Q.  B.  Ill  ;  Pettit  v.  Jlitchell,  Car.  & 
son,  B.,  in  delivering  the  judgment  of  M.  424  ;  Gilliat  v.  Roberts,  19  L.  J.  Ex. 
the  court,  saying:  "  Every  receipt  is  not  410;  Cunliflfe  v.  Harrison,  20  L.  J.  Ex. 
anacceptance,  but  if  the  party  accepts  the  325  ;  Archer  v.  Bayne,  lb.  54  ;  Currie  v. 
thing,  though  but  for  a  moment,  for  that  Anderson,  29  L.  J."  Q.  B.  87  ;  Sayers  v. 
for  which  the  other  pays  it,  he  cannot  Birmingham  Gas  Co.,  27  L.  J.  Ex.  295. 
afterwards,  by  his  subsequent  dissatisfac-  ^  n  L.  T.  x.  s.  107. 

tion,  get  rid  of  the  effect  of  it."     And  see  *  On  this  point,  see  our  coiAments  on 

Hart  V.  Boiler,  15  S.  &  R.  162  ;  .Tones  v.     the  next  succeedincr  case. 
Shawhan,  4  W.  &  S.  257,  263  ;   Mason  v. 


1 


\ 


PART   VI.]  THE   ACCEPTANCE.  413 

The  distinction  which  we  have  made  (see  ante  p.  379)  between 
the  effect  of  the  acceptance  and  actual  receipt  of  the  whole  of  the 
goods,  and  of  the  acceptance  and  actual  receipt  of  only  a  part,  as 
regards  the  effect  on  the  seller's  lien,  where  the  sale  is  not  on 
credit,  was  lost  sight  of  by  counsel  in  Kershaw  v.  Ogden,^  as  it  has 
been  by  courts  and  counsel  in  so  many  other  cases.  The  facts  in 
that  case  were  that,  in  December,  1863,  the  plaintiff,  a  cotton- 
spinner,  having  some  cotton  waste  for  sale,  G.,  an  agent  of  de- 
fendants, also  cotton-spinners,  went  to  the  plaintiff's  warehouse, 
when  he  was  shown  by  the  warehouseman  five  stacks  of  cotton 
waste.  He  asked  for  a  sample  and  was  told  it  was  not  the  plain- 
tiff's course  of  business  to  sell  by  sample,  but  that  he  might  ex- 
amine the  stacks  and  take  a  sample  himself,  which  he  did.  After 
some  negotiation,  G.  agreed  to  purcliase  four  of  the  stacks  at 
Is.  9c?.  a  pound,  the  defendants  to  send  their  packer  and  sacks, 
and  their  cart  to  remove  it.  On  January  3,  following,  the  defend- 
ants sent  their  packer  with  eighty-one  sacks,  to  pack  the  waste,  and 
he,  with  the  assistance  of  the  plaintiff's  men,  packed  the  four  stacks 
into  those  sacks.  On  January  5,  twenty-one  sacks  were  weighed, 
put  into  the  defendants'  cart,  and  taken  to  their  premises,  together 
with  a  delivery  order  stating  the  weight.  The  remainder  of  the 
sacks  were  not  weighed.  On  the  same  day,  the  twenty-one  sacks 
of  cotton  waste  were  returned  to  the  plaintiff  by  the  defendants, 
with  a  note,  stating  that  the  waste  was  of  an  inferior  description 
to  that  purchased  by  them.  The  defendants'  carter  took  the 
horse  out  of  the  cart  and  left  it  loaded  with  the  waste  outside 
of  the  warehouse  of  the  plaintiff,  who,  to  prevent  it  from 
spoiling,  ordered  it  to  be  placed  under  shelter,  and  the  next 
day  removed  it  from  the  cart  into  his  warehouse.  In  an  action 
for  the  price,  the  declaration  contained  a  special  count  for  not 
accepting  the  goods,  with  counts  for  goods  bargained  and  sold, 
and  goods  sold  and  delivered.  The  Statute  of  Frauds  was  relied 
on,  but  the  jury  found  that  the  defendants  did  accept  and  actually 
receive  part  of  the  goods.  In  the  court  above,  the  defendants' 
counsel  claimed  that  the  men  who  packed  the  waste  were  not  the 
defendants'  agents  to  accept  it,  and  that  the  defendants  had  the 
right  on  the  waste  arriving  at  their  premises  to  reject  and  return 
it;  relying  on  the  entirely  immaterial  fact,  as  regards  the  opera- 
tion of  the  statute,  where  there  have  been  an  acceptance  and  a  re- 
ceipt of  a  part,  that  the  lien  still  continued  on  the  undelivered  part 
of  the  waste.  The  court  sustained  the  finding  of  the  jury,  Mar- 
tin, B.,  saying  :  "  The  question  depends  upon  what  was  tlie  con- 
tract, and  the  jury  have  found  that  it  was  a  contract  to  buy  four 

1  3  H.  &  C.  717. 


414  COMMENTARIES   ON   SALES.  [bOOK   IV. 

stacks  of  cotton  waste  specifically  agreed  on,  more  or  less,  taking 
them  for  better  or  worse.  If  that  finding  is  correct,  of  which  I 
entertain  no  doubt,  the  result  is  that  the  property  in  the  four 
stacks  passed  to  the  defendants,  and  the  plaintiff  became  entitled  to 
recover  the  price  in  an  action  for  goods  bargained  and  sold.  The 
seventeenth  section  of  the  Statute  of  Frauds  requires  that  there 
shall  be  an  acceptance  and  actual  receipt  of  part  of  the  goods. 
Here  the  defendants  sent  their  packer  to  pack  the  goods,  and  their 
cart  to  bring  them  away ;  and  the  moment  they  were  put  into  their 
cart  and  taken  away,  if  not  before,  there  was  evidence  for  the  jury 
of  an  acceptance  and  actual  receipt;  and  if  they  had  found* that 
there  was  none,  I  should  have  been  prepared  to  set  aside  the  ver- 
dict, as  against  the  evidence."  We  think  that,  independent  of  the 
question  of  actual  receipt,  the  acts  of  G.  constituted  an  acceptance 
of  the  cotton  waste  as  the  subject  of  the  sale  and  purchase,  within 
the  meaning  of  the  exception  in  the  statute,  prior  to  the  actual 
receipt,  by  the  manual  prehension  of  the  goods,  by  the  defend- 
ant's carriers. 

The  very  nicest  question,  from  one  point  of  view,  in  connection 
with  this  complex  subject,  is,  we  think,  as  to  what  is  an  accept- 
ance within  the  language  of  the  statute,  that  "  the  buyer  shall 
accept  part  of  the  goods  so  sold,  and  actually  receive  the  same,^^  to 
which  we  have  previously  referred.  And,  we  think,  that  instead 
of  being  assisted  by  the  large  majority  of  the  cases  which  have  been 
decided  under  this  clause  of  the  seventeenth  section  of  the  statute, 
we  are  actually  hindered  by  them,  failing,  as  so  many  of  them  do, 
to  discriminate  between  the  acceptance  and  the  actual  receipt  re- 
quired ;  and,  also,  in  their  failure  to  notice  the  difi'erence  between 
the  effect  produced  by  an  acceptance  and  actual  receipt  of  a  part, 
and  the  acceptance  and  actual  receipt  of  the  whole,  of  the  goods. 
Indeed,  we  have  so  far  found  no  case  in  which  the  question  as  to 
what  the  acceptance  "  of  a  part  of  the  goods  so  sold,"  apart  from 
the  very  different  question  of  the  actual  receipt  of  the  part  of  the 
goods  which  have  been  so  accepted,  is  referred  to  or  considered  at 
all.  And  yet,  we  think,  to  get  at  the  very  foundation  of  this 
clause  of  the  section,  the  satisfactory  disposal  of  these  questions 
is  a  subject  of  the  highest  importance.^ 

1  The^  language  of  the   section  is,  as  part  of  them,  will  take  the  case  out  of  the 

above,       except   the    buyer  shall   accept  statute;  in  cases  where  the  sale  is  not  of 

van  ot  the  goods  so  sold,  and  actually  specific  goods,  there  may  be  an  acceptance 

receive   tlm  s^mie        ^\  e   think  this  may  and  actual  receipt  of  a  part  of  the  goods 

meet  the    difficulty   which   presents     it-  only, —neither  an  acceptance  nor  actual 

sell   to  us.     Assuming   tnat   the   buying  receipt  of  the  whole  of  them, —which  will 

of  specific  goods  IS  in  itself,  in  effect,  an  take  the  case  out  of  the  contract  as  to  the 

accepting  of  the  whole  of  the  goods  as  the  whole  of  the  goods.     In  the  former  case 

subject  of  the  verbal  contract,  so  that  their  the  greater  would  include  the  less,  —  the 

actual  receipt,  or  the  actual  receipt  of  some  whole,  the   part;   and   in   the  latter  the 


PART   VI.] 


THE   ACCEPTANCE. 


415 


There  are  numerous  cases  where  both  of  these  questions  suggest 
themselves,  particularly  in  that  class  of  cases  where  there  has 
been  a  sale  by  sample,  and  more  particularly  where  there  have 
been  an  acceptance,  a  delivery,  and  a  corresponding  receipt  of 
bulk  samples  as  and  for  a  part  of  the  very  goods  sold  and  bought ; 
and  yet,  as  a  rule,  both  of  these  questions,  even  in  this  class  of 
cases,  are  virtually  ignored. 

Smith  V.  Hudson  ^  was  the  case  of  sale  by  sample  where  reason- 
ably we  might  have  expected  that  there  would  have  been  an  at- 
tempt there  made  to  have  defined  an  acceptance  within  the 
meaning  of  the  statute  ;  but,  although  we  find  Blackburn,  J.,  there 
saying,  "  It  is  almost  a  contradiction  to  say  that  there  is  a  delivery 
and  yet  not  a  receipt.  An  acceptance  under  section  17  of  the 
Statute  of  Frauds  is  another  question,''^  neither  he  nor  any  other 
member  of  the  court  there  attempts  a  statement  of  what  such 
an  acceptance  must  be,  except  it  is  contained  in  the  judgment  of 
Mellor,  J.,  where  he  says :  "  In  order  to  bind  the  contract  there 
must  be  an  assenting  to  an  actual  sale  of  the  goods."  Cockburn, 
C.  J.,  says :  "  There  is  a  distinction  between  a  mere  receipt  and  a 


requirements  of  the  statute  would  be  lit- 
erally met.  But  see  Hodgson  v.  Le  Bret, 
1  Camjj.  233,  where  there  was  an  accept- 
ance of  part  of  the  goods,  which  was  held 
not  to  take  the  case  out  of  the  statute  as 
to  other  goods  bought  at  the  same  time, 
which  were  not  accepted,  being  of  a  differ- 
ent class,  and  not  being  specific  or  ascer- 
tained goods.  But,  in  this  case,  these 
latter  goods  were  not,  as  the  accepted 
goods  were  held  to  have  been,  actually 
received.  It  is  much  to  be  regretted  that, 
in  the  confusion  which  has  existed  in  the 
English  cases  as  to  the  distinction  between 
the  accepting  and  the  actual  receipt  of  the 
statute,  we  are  there  entirely  without  ju- 
dicial decision  or  consideration  as  to  the 
effect  of  the  term  "shall  accept  pa7't  of 
the  goods  so  sold  ; "  or  how  there  can  be 
an  acceptance,  either  at  common  law  or 
under  the  statute  (aside  altogether  from 
the  actual  receipt  required),  of  a  part  of 
the  goods  sold,  which  can  make  the  con- 
tract of  sale  be  deemed  good  as  to  the  goods 
which  have  not  been  accepted.  Judicial 
investigation  of  this  subject  seems  de- 
sirable. 

The  terra  "  accept  part  of  the  goods  so 
sold  "  might  possibly  have  been  intended 
to  cover  the  case  where  a  purchase  had 
been  made  of  non-specified  goods,  and, 
subsequent  to  the  purchase,  a  part  of  the 
goods  be  received  and  accei>ted  as  repre- 
senting the  whole  of  the  goods  purchased 
under  the  contract,  in  which  case  such  ac- 
ceptance and  receipt  of  a  part  would  bind 


the  contract  as  to  the  whole.  Or,  in  the 
same  way,  after  the  purchase  of  non-speci- 
fied goods,  there  might  be  acts  —  as  the 
acceptance  is  an  act  of  the  mind  —  which 
would  constitute  an  acceptance  of  a  part 
of  the  goods,  without  the  actual  receipt 
being  concurrent  with  it ;  and  then,  on 
the  vendee  actually  receiving  the  part  he 
had  accepted,  that  would  be  sufficient  to 
take  the  case  out  of  the  statute  as  to  the 
whole  of  the  goods.  Or,  again,  in  the 
case  of  a  sale  by  sample,  where  the  sam- 
ple has  been  received  as  a  jiart  of  the 
bulk  of  the  goods  sold,  while  this,  in  one 
sense,  might  be  said  to  be  an  acceptance 
or  assenting  to  of  the  whole  of  the  specific 
goods  sold,  yet,  where  the  bulk  when  re- 
ceived has  not  corresponded  with  the  sam- 
ple, as  that  was  not  accepted,  though  re- 
ceived, there  might  here  be  said  to  have 
been  only  an  acceptance  of  the  part. 
There  may  be  an  acceptance  of  the  whole, 
and  an  actual  recei]tt  of  some  part  of  the 
goods,  which  would,  of  course,  satisf)'  the 
statute.  So  where  the  goods  consi.st  of 
different  lots,  there  could  be  an  accept- 
ance of  one  or  some  of  these  lots,  and  an 
actual  receipt  thereof,  which  would  make 
literally  an  acceptance  and  actual  receipt 
of  some  part  of  the  goods,  and  which  would 
be  a  verbal  conformance  with  tlie  language 
of  the  statute.  Or,  furtlier,  there  may  be 
an  actual  receipt  of  a  part  of  the  gootls,  and 
a  concurrent  or  subsequent  acceptance, 
and  the  statute  would  be  satisfied. 
1  6  B.  &  S.  431. 


1 


416  COMMENTARIES   ON   SALES.  [bOOK   IV. 

receipt  animo  acciinendi,  and,  in  the  present  case,  the  sale  being 
by  sample,  the  buyer  had  a  right  to  see  whether  the  bulk  was  ac- 
cording to  the  sample,  and  until  he  had  exercised  that  right  there 
was  no  acceptance  within  tlie  statute." 

Here  the  acceptance  is  put  as  though  it  were  a  part  of  the 
receipt,  —  "a  receipt  animo  accipiendi,''^  ^  —  and,  further,  that 
where  the  sale  is  by  sample  there  is  no  receipt  animo  accipiendi 
until  the  buyer  has  exercised  his  right  of  ascertaining  whether 
the  bulk  corresponds  with  the  sample  or  not.  But,  right  in  the 
face  of  this,  again,  we  have  Mellor,  J.,  in  the  same  case,  saying : 
"  There  may  be  an  acceptance  and  receipt  to  satisfy  the  statute, 
and  yet  the  buyer  may  refuse  to  carry  out  the  contract,  on  the 
ground  that  the  goods  were  not  according  to  the  contract."  And, 
on  the  argument  of  the  case,  we  have  Cockburn,  C.  J.,  himself 
saying :  "  The  defendant  had  performed  his  part  of  the  contract 
by  delivering  the  goods  to  the  agent  of  the  vendee.  Is  there  any 
case  in  which,  after  the  seller  has  done  all  that  lies  on  him  to  do, 
he  can  repudiate  the  contract  and  demand  back  the  goods  ? " 
And,  "  Suppose  the  purchaser  accepts,  subject  only  to  a  right  to 
reject  the  goods  if  they  do  not  correspond  with  the  sample,  does 
not  the  property  in  the  goods  pass,  as  far  as  the  vendor  is  con- 
cerned, unless  there  be  something  to  show  that  such  was  not  the 
intention  of  the  parties  ?  " 

In  reply  to  the  former  of  these  questions,  we  would  say  that 
there  is  a  case  which  so  decides,  viz.,  Nicholson  v.  Bower ;  ^  and, 
if  that  case  is  correctly  decided  (of  which  we  must  say,  we  think, 
with  a  more  correct  view  furnished  by  principle  and  by  other 
cases  than  is  entertained  in  it  of  what  an  acceptance  under  the 
statute  really  is,  there  is  the  greatest  doubt),  then  Smith  v.  Hud- 
son ^  is  also  correctly  decided.  But  if  one  of  them  is  not  cor- 
rectly decided,  obviously  neither  is  the  other.  In  reply  to  the 
latter  question  of  Cockburn,  C.  J.,  we  think  it  is  quite  well 
decided  that  if,  in  addition  to  the  acceptance  of  which  he 
speaks,  and  which  he  assumes,  but  incorrectly,*  implies  receipt  as 
well,  there  be  also  the  actual  receipt  of  the  goods,  the  statute 
is  complied  with,  even  though  the  vendee  may  have  a  right,  after 
the  acceptance  and  receipt  of  the  goods,  to  return  them.  Such 
would  be  the  common  case  of  a  sale  by  sample  where  the  bulk 
sample,  as  and  for  a  part  of  the  very  goods  sold,  had  been  ac- 
cepted and  actually  received,  so  as  to  make  the  contract  good 

1  In  fact,  Cockburn,  C.  J.,  on  the  argu-  2  i  e_  &  e.  172. 

ment  expressly  says:  "  If  the  vendor  de-  »  6  B.  &  S.  431. 

livers  to  the  purchaser,  the  delivery  and  *  See  Cusack  v.  Robinson,  1  B.  &  S. 

acceptance  are  mutual,"  treating  accept-  299,  stated  supra. 
ance  simply  as  synonymous  with  receipt. 


PART   VI.]  THE    ACCEPTANCE.  417 

within  the  statute  ;  and  yet,  after  the  receipt  of  the  bulk  the 
vendee  would  still  have  the  right  of  rejecting  and  returning  the 
goods  if  they  were  not  according  to  the  sample,  and,  therefore, 
they  proved  not  to  be  the  goods  which  he  had  accepted,  and  of 
which  he  had  actually  received  a  part.  And  the  fact  that  this 
is  so  causes  us  very  seriously  to  doubt  the  correctness  of  the 
decisions  in  Nicholson  v.  Bower  '  and  Smith  v.  Hudson.^ 

The  case  in  Smith  v.  Hudson^  was  of  48|  quarters  of  barley, 
at  35s.  per  quarter,  by  verbal  contract,  the  sale  being  on  Novem- 
ber 3,  by  sample.  The  bulk  was  delivered  on  November  7  to  a 
railway  station,  under  circumstances  which  made  the  station  the 
warehouse  of  the  vendee,  the  transitus  having  there  ended,  the 
vendee  having  no  warehouse  of  his  own,  and  being  in  the  habit 
of  reselling  barley  he  purchased,  and  forwarding  it  from  the  sta- 
tion to  the  purchasers  on  selling  it.  It  is  the  custom  of  the  trade 
on  purchases  by  sample  for  the  buyer  to  compare  the  sample  with 
the  bulk  as  delivered,  and  if  the  examination  is  not  satisfactory, 
either  to  reject  it  or  to  allow  it  to  remain  as  tlie  property  of  the 
vendor ;  and,  in  this  case,  such  was  the  power  of  the  purchaser. 
On  November  9,  the  vendee  was  adjudicated  bankrupt,  and  on 
the  eleventh  the  vendor  gave  notice  to  the  station-master  not 
to  deliver  the  barley,  and  that  he  claimed  it  as  his  property, 
which,  on  his  indemnifying  the  company,  was  subsequently  (on 
December  5)  surrendered  to  him.  When  the  notice  was  given 
the  company  the  barley  was  still  with  them,  they  holding  it,  free 
of  damage,  for  five  days  after  its  receipt,  according  to  their  usual 
custom  ;  the  vendee  down  to  that  time  having  made  no  disposition 
of  the  barley;  had  not  examined  it  to  see  whether  the  bulk  corres- 
ponded with  the  sample,  nor  had  given  any  notice  to  the  vendor 
of  retaining  or  rejecting  the  barley.  On  December  1,  the  plain- 
tiffs, being  appointed  the  vendee's  assignee,  claimed  the  barley 
from  the  railway  company.  On  a  special  case  stated,  the  court 
held  that  there  had  been  no  acceptance  of  the  barley  to  satisfy 
the  statute,  and  that  the  barley  was  not  in  the  apparent  possession, 
order,  or  disposition  of  the  vendee  within  the  meaning  of  the  Eng- 
lish Bankruptcy  Act,  12  &  13  Vic.  ch.  106,  sec.  125. 

The  very  different  senses  in  which  the  term  "  accept "  is  open  to, 
is  evident  by  Lord  Chelmsford's  use  of  that  term  in  Carston  v. 
Chapman,*  where  the  question  was  not  under  the  Statute  of  Frauds, 
but  as  to  the  passage  of  property  in  goods  purchased  by  sample  at 
common  law,  independent  of  the  statute.  Lord  Chelmsford  there 
says :  "  In  England,  if  goods  are  sold  by  sample,  and  they  are  de- 

M  E.  &  E.  172.  8  md. 

2  6  B.  &  S.  431.  *  L.  R.  2  Sc.  &  Div.  250,  254. 

VOL.    71,  27 


418 


COMMENTARIES   ON  SALES. 


[book  IV 


livered  and  accepted  [used  here,  not  in  the  sense  of  received,  but 
accepted  as  conforming  to  the  sample,  as  in  the  statute]  by  the 
purchaser,  he  cannot  return  them ;  but  if  he  has  not  completely 
accepted  them,  that  is,  if  he  has  taken  the  delivery  conditionally 
[i.  e.  received,  but  not  accepted  them],  he  has  a  right  to  keep  the 
goods  for  a  sufficient  time  to  enable  him  to  give  them  a  fair  trial, 
and  if  they  are  found  not  to  correspond  with  the  sample,  he  is  then 
entitled  to  return  them."  ^ 

Precisely  the  same  law  applies  as  regards  the  Statute  of  Frauds 
where  there  have  been  an  acceptance  and  actual  receipt  of  some 
part  of  the  goods  sold,  as,  for  instance,  by  the  receipt  of  bulk  sam- 
ples. Yet,  as  at  common  law,  if  tlie  goods  are  equal  to  sample, 
the  property  therein  is  vested  in  the  vendee  ;  so,  under  the  stat- 
ute, the  acceptance  and  actual  receipt  of  a  part  taking  the  case 
out  of  the  statute,  the  property  in  the  bulk  vests  on  its  receipt  in 
the  vendee,  if  it  accord  with  the  bulk  sample,  so  as  to  be  the  very 
goods  purchased,  even  though  there  has  been  the  right  of  rejecting 
such  bulk  if  it  had  proved  not  equal  to  sample.  And  hence,  if  a 
purchase  by  sample  is,  in  itself,  an  acceptance  of  the  whole  of  the 
specific  goods  purchased,  represented  by  such  sample,  obviously, 
on  the  actual  receipt  of  the  whole  of  the  goods  by  the  vendee,  the 
property,  with  the  possession,  vests  in  him,  even  though  he* have 
the  subsequent  right  to  reject  them  if  they  do  not  accord  with  the 
sample ;  they  not  being  the  bulk  of  the  very  goods  which  he  has 
purchased  as  represented  by  such  sample.^ 

But  the  question  still  remains  for  disposition  :  Is  the  purchase  by 
sample  (without  the  delivery  and  receipt  of  a  bulk  sample)  a  pur- 
chase of  specific  goods  represented  by  such  sample,  and  an  accept- 
ance of  the  goods  so  purchased  by  sample,  so  as,  on  their  actual 
receipt  by  the  vendee,  to  make  the  contract  for  their  sale  and 
purchase  be  deemed  good  within  the  seventeenth  section  of  the 
Statute  of  Frauds?  We  are  inclined,  on  principle,  to  think  that  it 
is,  although  we  know  of  no  case  where  it  is  so  decided,  or  where 
the  question  is  even  considered.^  And,  in  Nicholson  v.  Bower,* 
and  Smith  v.  Hudson,^  the  facts  were  as  here  stated,  and,  in  both 
of  these  cases  it  was  held  that,  under  such  circumstances,  on  the 
ground  that  the  cases  were  not  taken  out  of  the  statute,  the  prop- 


1  And  see  Dixon  v.  Yates,  5  B.  &  Ad. 
313,  340. 

2  See  per  Holroyd,  J.,  in  Parker  v. 
Palmer,  4  B.  &  Aid.  393.  And  per  Ab- 
bott,  C.  J.,  Ih.  392. 

^  But  see  the  later  case  of  Kibble  v. 
Gough,  38  L.  T.  n.  s.  204,  stated  infra, 
which  fully  sustains  our  reasoning  and 
conclusion,  although  that  case  is  full  of 


the  fallacies  resulting  from  the  adoption 
of  Lord  Campbell's  unsound  obiter  dictum 
in  Morton  v.  Tibbett,  15  Q.  B.  428.  And 
see  Eickard  v.  Moore,  38  L.  T.  N.  s.  841, 
and  Page  v.  Morgan,  15  Q.  B.  Div.  228, 
also  stated  and  considered  infra,  similarly 
sustaining  our  view. 

*  1  E.  &  E.  172. 

6  6  B.  &  S.  431. 


PART   VI.]  THE   ACCEPTANCE.  419 

erty  in  the  goods  had  not  vested  in  the  vendees.  But  both  of  these 
cases  were  decided  without  any  intelligent  consideration  of  what 
an  acceptance  is  ;  while,  in  Cusack  v.  Robinson,^  it  was  held  that 
the  purchase  of  specific  goods,  in  that  case,  at  least,  was  an  accept- 
ance of  them  within  the  statute,  and  that,  on  their  subsequent 
actual  receipt,  —  they  being  the  very  goods  which  were  purchased, 
—  the  statutory  requirements  were  met ;  the  property  in  the  goods 
had  vested  in  the  vendee,  and  that  without  any  power  of  rejection 
or  rescission.  Such  being  the  case,  we  confess  it  does  not  seem 
very  clear  to  us  why  the  purchase  of  specific  goods  in  any  other 
cases,  whether  the  purchase  be  by  sample,  description,  or  exami- 
nation, does  not  equally  amount  to  an  acceptance  of  them  as  the 
very  subject  of  such  purchase,  to  cause  the  contract  for  their  sale 
and  purchase  to  be  deemed  good,  on  their  subsequent  actual  re- 
ceipt as  the  identical  goods  purchased,  recognized,  and,  shall  we 
say,  accepted,  as  the  identical  subject  of  the  purchase,  as  desig- 
nated by  such  examination,  description,  or  purchase  by  sample. 
But  we  proceed  with  the  remainder  of  the  cases. 

The  principles  laid  down  by  Bovill,  C.  J.,  in  Heilbutt  v.  Hick- 
son,2  although  applied  to  the  question  of  the  accepting  or  appro- 
priating goods  to  a  contract  of  sale,  so  that  the  property  therein 
will  pass  at  common  law,  we  think  are  equally  applicable  to  the 
accepting  or  taking  to  as  the  goods  of  the  contract,  under  the 
statute,  so  that,  on  their  actual  receipt,  the  contract  for  their  sale 
and  purchase  shall  be  deemed  good.  Bovill,  C.  J.,  lays  down  the 
following  principles  of  law  as  being  well  settled : 

"  Where  specific  and  ascertained  existing  goods  or  chattels  are 
the  subject  of  a  contract  of  immediate  and  present  sale,  and 
■whether  there  be  a  warranty  of  quality  or  not,  the  property  gen- 
erally passes  to  the  purchaser  upon  the  completion  of  the  bargain, 
and  the  vendor  thereupon  has  the  right  to  recover  the  price,  unless 
from  some  other  circumstances  it  can  be  collected,  that  the  inten- 
tion was  that  the  property  should  not  at  once  vest  in  the  purchaser. 

"  Where  there  is  a  warranty  of  the  quality  of  such  specific 
goods,  that  circumstance  will  not  prevent  the  property  in  them 
passing  to  the  purchaser,  and  if  it  be  simply  a  warranty,  will  not 
entitle  the  purchaser  to  refuse  to  accept  [  ?  receive]  the  goods,  or 
to  return  them,  merely  because  the  warranty  is  not  fulfilled  ;  and 
in  order  to  entitle  the  purchaser  so  to  refuse  or  to  return  them,  it 
must,  in  the  case  of  specific  goods,  be  a  term  of  the  contract  that 
he  shall  be  at  liberty  to  do  so. 

"  In  the  case  of  executory  contracts,  where  the  goods  are  not 
ascertained  or  may  not  exist  at  the  time  of  the  contract,  from  the 

1  1  B.  &  S.  299,  stated  supra,  406,  et  seq.  «  l.  r,  7  q.  P.  438,  449,  et  seq. 


420  COMMENTARIES   ON   SALES.  [BOOK    IV. 

nature  of  the  transaction  no  property  in  the  goods  can  pass  to  the 
purchaser  by  virtue  of  the  contract  itself;  but,  where  certain 
goods  have  been  selected  and  appropriated  by  the  seller,  and  have 
been  approved  and  assented  to  by  the  buyer  [?  accepted  by  him], 
then  the  case  stands,  as  to  the  vesting  of  the  property,  very  much 
in  the  same  position  as  upon  a  contract  for  the  sale  of  goods  which 
are  ascertained  at  the  time  of  the  bargain.  In  most  cases  of  such 
executory  contracts,  something  more  would  generally  remain  to 
be  done,  such  as,  for  instance,  selection  or  appropriation,  approval, 
and  delivery  of  some  kind,  before  the  property  would  be  consid- 
ered as  intended  to  pass,  and  upon  that  taking  place,  the  property 
might  pass  if  it  was  intended  to  do  so,  equally  as  in  the  case  of  a 
contract  for  specific  and  ascertained  goods.  Lord  Wensleydale, 
in  the  case  of  Dixon  v.  Yates,^  put  the  case  of  a  sale  of  a  specific 
chattel  upon  the  same  footing  as  the  sale  of  an  unascertained 
chattel  after  delivery,  for  the  purpose  of  showing  that  the  prop- 
erty vested  in  the  latter  case  upon  delivery,  and  in  the  former  by 
the  contract  itself.  And  see  also  upon  this  subject,  Alexander  v. 
Gardner,^  Aldridge  v.  Johnson,^  which  was  confirmed  by  Langton 
V.  Higgins;*  also  the  judgment  of  Parke,  B,,  in  Wait  v.  Baker,^ 
Brown  v.  Hare  ^  in  error,  and  Tregelles  v.  Sewell.' 

"  In  cases  where,  under  an  executory  contract,  goods  are  sent 
by  the  vendor  which  do  not  come  within  the  general  description 
of  those  contracted  for,  the  purchaser  may  refuse  to  receive  or 
may  reject  them ;  and  equally  so  if  there  be  any  other  condition 
in  the  contract  which  is  not  complied  with  ;  so,  in  like  manner, 
if  a  fraud  has  been  practised  by  the  seller,  then,  upon  discovery  of 
the  fraud,  and  within  a  reasonable  time,  and  if  nothing  has  been 
done  by  the  purchaser  to  alter  the  position  of  the  vendor,  the 
purchaser  may  reject  the  goods. 

"In  the  judgment  of  the  Court  of  Exchequer  Chamber  deliv- 
ered by  my  Brother  "Williams  in  the  case  of  Behn  v.  Burness,^ 
the  law  is  thus  laid  down :  '  In  cases  where  the  thing  sold  is 
not  specific,  and  the  property  has  not  passed  by  the  sale,  the  ven- 
dee may  refuse  to  receive  the  thing  proffered  to  him  in  perform- 
ance of  the  contract,  on  the  ground  that  it  does  not  correspond 
with  the  descriptive  statement,  or,  in  other  words,  that  the  condi- 
tion expressed  in  the  contract  has  not  been  performed ;  still,  if  he 
receive  the  thing  sold,  and  has  the  enjoyment  of  it,  he  cannot 
afterwards  treat  the  descriptive  statement  as  a  condition,  but  only 
as  an  agreement,  for  a  breach  of  which  he  may  bring  an  action  to 
recover  damages.' " 

1  5  B.  &  Ad.  340.  5  2  Ex.  1. 

2  1  Bing.  N.  C.  671.  6  4  h.  &  N,  822. 

3  7  E.  &  B.  885.  7  7  H.  &  N.  574. 

*  4  H.  &  N.  402.  8  3  B.  &  S.  at  p.  756. 


PART  VI.]  THE   ACCEPTANCE.  421 

And  yet,  at  common  law,  although  the  property  in  the  goods, 
whether  under  an  immediate  or  executory  contract  of  sale,  may 
.have  passed,  there  may  still  in  each  instance  be  a  lien  for  the 
purchase-money,  and  a  right  to  stop  in  transitu,  and  the  purchaser 
may  not  be  entitled  to  possession  without  payment  of  the  price.^ 

All  this  we  think  is  quite  applicable  to  acceptance  under  the 
statute,  and  we  see  no  escape  from  the  conclusion  that  where 
there  is  a  contract  of  sale  for  specific  goods  which  passes  the 
property  to  the  goods  at  common  law,  that  that  is  itself  such  an  ac- 
ceptance of  the  goods  as  the  subject  of  the  purchase,  as  will  cause 
the  contract  to  be  deemed  good  within  the  exception  to  the  seven- 
teenth section  of  the  statute,  where  there  has  also  been  such  an  act- 
ual receipt  of  them  by  the  vendee  as  puts  an  end  to  the  lien  and 
extinguishes  the  right  of  stoppage  in  transitu  in  the  specific  goods. 

The  quite  recent  case  of  Grimoldby  v.  Wells  ^  shows  how  very 
unsettled  the  English  judges  are  as  to  what  constitutes  an  accept- 
ance to  satisfy  the  exception  in  the  seventeenth  section  of  the 
statute.  The  case  on  the  question  of  acceptance  is  one  of  the 
very  simplest  conceivable,  and  althougii  it  was  the  leading  ques- 
tion involved  in  the  case,  a  correct  decision  on  which  would  have 
rendered  unnecessary  a  decision  on  the  very  different  question 
which  they  did  undertake  to  decide ;  and  which  latter  question, 
on  their  assumption  that  there  was  an  acceptance  of  the  whole  of 
the  goods  within  the  meaning  of  the  statute,  we  confidently  sub- 
mit they  decide  wrongly. 

The  action  was  brought  in  March,  1874,  to  recover  the  price  of 
four  quarters  of  tares  sold  by  the  plaintiff  to  the  defendant  by 
sample,  by  a  verbal  contract.  The  bulk  was  delivered  on  October 
9, 1873,  to  the  defendant.  The  defendant  and  plaintiff  lived  about 
nine  miles  apart,  and  the  tares  were  sent  part  of  the  way  in  a  cart 
belonging  to  the  plaintiff,  and  then  placed  in  a  cart  belonging 
to  and  sent  by  the  defendant,  and  taken  by  his  servant  into  his 
barn,  where  they  remained  at  the  time  of  the  trial  of  the  action. 
On  the  day  of  the  delivery  the  defendant  inspected  the  bulk,  and 
immediately  notified  the  plaintiff  verbally  and  by  letter,  that  the 
tares  were  in  his  (the  defendant's)  barn ;  that  they  were  bad  ; 
that  he  would  not  have  them,  nor  pay  for  them,  and  that  the 
plaintiff  might  do  what  he  liked  with  them. 

Here,  under  all  the  authorities,  including  Nicholson  v.  Bower  ^ 
and  Smith  v.  Hudson,*  there  is  not  a  tittle  of  evidence  to  show 

1  Per   Bovill,    C.  J.,    in  Heilbutt    v.  2  l.  R.  10  C.  P.  391. 

Hickson,   L.  R.  7  C.   P.  at  p.  451.     And  3  i  E.  &  E.  172. 

see  also  Parker  v.  Palmer,   4  B.  &  Aid.  *  6  B.  &  S.  431. 
392,  393,  et  seq. 


422  COMMENTARIES   ON   SALES.  [BOOK  17. 

an  acceptance  of  the  goods,  or  any  part  ot  them ;  the  County  Court 
iudsie  on  the  trial  having  found  as  a  fact  that  the  tares  were  not 
equal  to  the  sample.  There  was  an  actual  receipt  of  the  goods, 
but  clearly,  under  the  meaning  of  the  term  in  the  statute,  no  ac- 
ceptance of  them.  Nor  did  the  additional  facts  of  the  case  estab- 
lish an  acceptance  of  the  tares.  These  were  that  the  defendant 
did  not  return,  or  offer  to  return,  the  tares  to  the  plaintiff ;  nor 
did  he  place  them  in  neutral  custody,  but  they  remained  in  his 
barn  as  before  stated.  Early  in  January,  the  defendant,  for  the 
purpose  of  showing  that  the  tares  were  inferior  to  sample,  had  one 
of  the  sacks  opened  and  dressed  over,  and  the  result  of  the  dress- 
ing was  produced  in  court.  These  facts,  instead  of  showing  an 
acceptance  of  the  tares,  showed  a  prompt  and  continuous  rejection 
of  them.  Had  the  goods  been  equal  to  sample,  then  the  case 
would  have  been  open  to  the  consideration  of  the  very  different 
question  to  which  we  have  previously  adverted,  as  to  whether  the 
purchase  of  the  specific  goods  by  sample,  which  identical  goods  so 
purchased  were  actually  received,  was  not  in  itself  an  acceptance 
of  them, —  an  assenting,  a  recognising,  an  approving,  a  taking  to 
them  as  the  very  subject  of  the  contract,  within  the  meaning  of 
the  statute ;  which,  on  their  actual  receipt,  would  cause  the  prop- 
erty in  them  to  pass,  as,  in  the  purchase  of  specific,  ascertained 
goods  at  common  law,  would  result  from  the  purchase  itself.  But, 
in  this  case,  they  were  not  equal  to-  sample,  and,  therefore,  were 
not  the  subject  of  the  purchase  at  all ;  and  then,  in  fact,  instead 
of  being  subsequently  accepted,  were  expressly  and  continuously 
rejected  and  refused  acceptance  as  the  subject  of  the  purchase  by 
sample,  —  being  not  the  subject-matter  that,  by  the  terms  of  the 
contract,  it  was  agreed  should  be  accepted  as  the  very  subject  of 
the  purchase. 

It  was  contended  for  the  defendant,  and  we  think  with  entire, 
and,  at  last,  literal  correctness,  that  there  was  no  sufficient  evi- 
dence of  an  acceptance  within  the  Statute  of  Frauds,  and  that,  the 
goods  not  being  equal  to  sample,  the  defendant  was  entitled  to  re- 
ject them.  The  County  Court  judge  held  that  there  was  an  accept- 
ance within  the  Statute  of  Frauds  ;  and,  relying  on  his  view  of 
the  holding  in  Couston  v.Chapman,i  which  he  purported  to  follow, 
also  held  that  the  defendant  on  rejecting  the  goods  must  return 
them,  or  place  them  in  neutral  custody,  and  that  having  retained 
them  in  his  own  possession  he  was  liable  to  pay  for  them. 

The  case  was  taken  on  appeal  to  the  Common  Pleas.  The 
judgment  in  that  court  is  one  of  the  most  remarkable  which  we 
have  found  in  the  records  of  any  English  court,  —  going  back  to 

1  L.  R.  2  Sc.  &  Div.  250. 


PART   VI.]  THE   ACCEPTANCE.  423 

the  very  earliest  times.  Obviously,  right  on  the  face  of  the  case, 
for  decision,  was  tlie  question  as  to  whether  there  was  an  accept- 
ance of  the  tares  (which,  diifering  from  those  contracted  for,  had 
never  been  assented  to  or  "  accepted  "  at  all)  within  the  meaning 
of  the  statute ;  and  on  the  correct  decision  of  that  question  the 
case  would  have  ended.  But  the  main  question  in  the  case  was 
avoided.  Lord  Chief  Justice  Coleridge  said,  "  The  first  question 
is  whether  there  was  an  acceptance  within  the  Statute  of  Frauds. 
It  is  not  necessary  in  the  view  we  take  to  decide  this,  but  I  should 
say  that  there  was  evidence  of  such  an  acceptance."  In  what  it 
consisted  there  is  no  intimation.  Brett,  J.,  too,  said,  "  There  are 
two  points  in  this  case  :  First,  whether  there  was  an  acceptance 
of  these  goods  within  the  Statute  of  Frauds.  ...  As  to  the  first 
point  I  decline  to  give  any  opinion,  because  it  is  unnecessary,  as 
I  think,  to  decide  it.  .  .  .  In  the  present  case  I  assume  that  there 
was  an  acceptance  which  did  make  a  binding  contract  within  the 
Statute  of  Frauds."  And  Denman,  J.,  "  The  only  other  question 
raised  is  whether  there  was  an  acceptance  within  the  Statute  of 
Frauds.  On  this  1  express  no  opinion,  as  in  the  event  it  becomes 
unnecessary  to  do  so."  They  then  held,  that,  assuming  that  the 
tares  had  been  accepted  (the  whole  case  showing  that  they  were 
thereby  assuming  that  there  had  been  an  acceptance  of  the  whole 
bulk  of  the  tares),  the  defendant,  after  such  acceptance,  could 
reject  them,  and  so  rejecting  them  was  not  bound  to  return  them 
or  place  them  in  neutral  custody.  Their  reliance  was  placed  on 
the  obiter  dictum  of  Lord  Campbell  in  Morton  v.  Tibbett,^  exam- 
ined by  us,  supra,  where  it  was  fallaciously  laid  down,  in  effect, 
that  after  there  had  been  an  acceptance  of  the  whole  of  the  goods 
to  satisfy  the  statute  there  could  be  a  subsequent  rejection  of 
them ;  that  is,  that  they  could  be  both  accepted  and  rejected ! 

They  also  relied  on  Lucy  v.  Monflet  -  for  the  right  of  the  vendee 
to  reject  goods  after  they  had  been  accepted.  But  that  was  not  a 
case  under  the  Statute  of  Frauds  at  all ;  and,  further,  it  was  there 
found  that  the  vendee  had  not  accepted  the  goods ;  and  the  court 
held  that  there  was  evidence  in  the  case  to  warrant  such  finding. 
We  think  it  is  entirely  too  clear  for  argument,  that,  in  Grimoldby 
V.  Wells,^  there  was  no  acceptance  (recognizing,  assenting  to, 
taking  to  as  the  very  subject  of  the  contract)  of  the  bulk  of  the 
tares  which  were  actually  received  ;  and  that,  on  the  other  hand, 
had  there  been  an  acceptance  and  actual  receipt  of  the  whole 
of  the  goods,  so  that  the  contract  under  the  statute  was  to  be 
"  deemed  good,"  the  vendee  then  could  not  have  rejected  them ; 

1  15  Q.  B.  428.  8  L.  R.  10  C.  P.  891. 

2  5  H.  &  N.  233. 


424 


COMMENTARIES   ON   SALES. 


[book  IV. 


and  therefore  the  question  as  to  the  duty  of  the  vendee  to  return 
the  rejected  goods  was  a  complete  7ion  sequitur,  as  there  never 
had  been  an  acceptance  of  them  to  make  a  completed  contract 
which  could  be  enforced.^ 

The  distinction  is  properly  taken  by  Brett,  J.,  in  Marshall  v. 
Green,2  between  the  "acceptance"  and  the  "actual  receipt"  of 
the  statute.  In  this  case  tiie  defendant,  by  a  verbal  contract, 
purchased  certain  growing  trees  (held  under  the  facts  to  be  per- 
sonal chattels)  for  <£26,  of  the  plaintiff,  on  the  terms  that  he,  the 
defendant,  should  remove  them  as  soon  as  possible.  The  defend- 
ant accordingly  cut  down  some  of  the  trees,  and  agreed  to  sell 
the  tops  and  stumps  to  a  third  person.  The  plaintiff  then  coun- 
termanded the  sale,  and  prohibited  the  defendant  from  cutting 
down  the  rest  of  the  trees.  Brett,  J.,  said,  "  It  was  not  denied 
in  argument  that  there  was  an  acceptance.  The  only  question, 
therefore,  is  whether  there  was  evidence  of  a  receipt.  Though 
there  was  an  acceptance,  there  was  no  actual  carrying  away  of 
the  things  from  the  premises  of  the  seller."  And,  "  Here,  by 
cutting  down  the  trees,  the  defendant  actually  did  something  to 
them  which,  apart  from  the  sale  over  of  the  toppings,  amounted, 
in  my  opinion,  to  an  actual  receipt  of  them," 

We  think  the  case  of  Kibble  v.  Gough,^  in  effect,  sustains  the 


1  Browne  in  his  very  excellent  work  on 
the  statute,  §  340,  says  :  "  It  is  hardly  ne- 
cessary to  remark  [we  should  scarcely  think 
so]  that  an  acceptance  or  receipt  once  in- 
telligently made  cannot  be  afterwards  re- 
voked, and  its  effect  avoided."  In  Buck- 
ingham V.  Osborne,  44  Conn.  133,  which 
was  a  question  as  to  the  right  of  rescission 
of  a  contract  rendered  valid  by  an  accept- 
ance and  actual  receipt  under  the  stat- 
ute of  frauds.  Park,  C.  J.,  in  deliver- 
ing the  judgment  of  the  court,  said  : 
"There  is  nothing  in  the  finding  tending 
to  show  that  the  acceptance  was  condi- 
tional; that  the  horse  was  received  for  the 
purpose  of  being  examined  in  order  to  as- 
certain whether  he  answered  the  terms  of 
the  contract ;  but,  on  the  contrary,  the 
finding  is  that  the  tender  and  acceptance 
were  absolute  ;  and  this  being  so,  the  con- 
tract could  not  be  rescinded  except  by  an 
agreement  of  both  the  parties  to  that  effect. 
If  the  defendant  had  accepted  the  horse  as 
his  property  when  the  plaintiffs  returned 
him,  the  contract  would  have  been  re- 
scinded. But  this  was  never  done.  When 
the  plaintiffs  returned  the  horse  the  de- 
fendant refused  to  receive  him,  and  after- 
wards brought  his  suit  for  the  purchase- 
money,  and  sold  the  horse  as  the  property 
of  the  plaintiffs.  This  being  so,  the  liorse 
continued  to  be  the  property  of  the  plain- 


tiffs from  the  time  he  was  delivered  to 
them,  notwithstanding  their  efforts  to  re- 
scind the  contract.  The  want  of  mutu- 
ality in  the  attempted  rescission  prevent«d 
a  retransfer  of  the  property."  See  also 
Jackson  v.  Watts,  1  McCord,  288.  As  we 
have  pointed  out,  the  confusion  in  the 
English  courts  on  the  subject  has  arisen 
from  their  having  failed  so  largely  to  dis- 
tinguish between  the  acceptance  and  the 
actual  receipt  of  the  statute,  and  in  fail- 
ing to  discriminate  between  the  effect  of 
accepting  and  actually  receiving  a  part 
of  the  goods,  which  only  binds  the  con- 
tract, as  in  the  case  of  the  payment  of 
earnest,  or  of  a  memorandum  of  the  con- 
tract in  writing,  and  that  of  accepting  and 
actually  receiving  the  whole  of  the  goods  ; 
which  latter  not  only  causes  the  co»tra«t 
to  be  deemed  good,  but  absolutely  vests 
the  property  and  possession  in  and  of  tlie 
goods  in  the  vendee  ;  and  that  so  effectu- 
ally that  while,  on  the  one  hand,  the  ven- 
dor's lien  as  well  as  his  right  to  stop  the 
goods  in  tratisitu  is  gone;  on  the  other 
hand,  the  vendee  has  no  power  to  rescind 
a  contract  of  his  own  mere  motion,  which 
has  irrevocably  become  binding,  outside  of 
the  question  of  fraud,  both  as  to  himself 
and  the  vendor. 

2  1  C.  P.  Div.  35,  43. 

8  38  L.  T.  N.  .s.  204. 


PART   VI.]  THE   ACCEPTANCE.  425 

opinion  we  have  more  than  once  intimated  in  the  investigation  of 
this  subject,  and  which  accords  with  the  general  trend  of  our 
reasoning,  —  that  as  the  "  accepting  "  ^  of  the  statute  is  nothing 
more  than  the  assenting  to  the  goods  which  are  actually  pur- 
chased as  the  very  subject  of  the  particular  contract ;  therefore,  as 
it  was  held  in  Cusack  v.  Robinsou,^  and  approved  and  followed  in 
The  Bog  Lead  Mining  Co.  v.  Montague,^  a  purchase  of  specific 
goods  is  itself  an  acceptance  of  those  very  goods  witliin  the 
meaning  of  the  statute,"^  entirely  independent  of  their  actual  re- 
ceipt. So,  the  buying  goods  by  sample  is  the  accepting,  assenting 
to,  recognizing,  taking  to,  as  the  very  subject  of  the  contract,  the 
specific  goods  represented  by  the  agreed  sample  ;  and,  therefore, 
if,  on  the  actual  receipt  of  the  goods,  the  bulk  is  found  to  be  the 
same  as  the  sample,  as.  thei/  are  the  identical  goods  which  have 
been  purchased  (that  is,  accepted,  assented  to,  recognized,  and 
approved  by  their  very  sale  and  purchase  as  being  the  specific 
goods  bought),  they  have  been  accepted,  and  cannot  be  rejected. 
But  if,  on  the  other  hand,  the  bulk  of  the  goods,  after  their  re- 
ceipt, shall  have  been  found  not  to  accord  with  the  sample,  then 
they  have  not  been  accepted,  and  may  be  rejected,  in  the  absence 
of  laches  on  the  part  of  the  vendee  after  their  receipt,  and  in  the 
absence  of  any  dealing  with  them  from  which  an  acceptance  may 
be  implied.  It  is  from  the  fact  that  both  of  these  propositions  are 
true,  —  namely,  that  where  the  very  goods  which  have  been  ac- 
cepted have  been  actually  received,  they  cannot  be  subsequently 
rejected;  but  that  where  the  very  goods  which  have  been  accepted 
have  not  been  actually  received,  but  others  in  lieu  of  them,  which 
have  never  been  accepted,  have  been  received,  then  these  latter 
can  be  rejected,  after  examination,  because  they  have  never  been 
accepted,  and,  therefore,  notwithstanding  the  actual  receipt,  the 
requirements  of  the  statute  have  not  been  met,  and  there  is  no 

1  The  following  from  a  periodical  ( The  of  a  part  of  the  goods,  Kliiiitz  v.  Surry,  5 
QuAver)  \s  apt:  "But  for  old  age  to  be  Esp.  267 ;  the  sale  of  specific  goods  by  sam- 
happy,  it  must  be  a  time  of  acceptance  pie  was  a  sufficient  acceptance  of  the  goods 
[  ?  assent].  Old  age  fought  against  is  mis-  at  common  law  as  the  subject  of  the  sale, 
arable;  old  age  accepted  [recognized,  as-  See  Dixon  y.  Yates,  5  B.  &  Ad.  313  ;  Parker 
sented  to],  is  calm  and  peaceful."  And  v.  Palmer,  4  B.  &  Aid.  387,  392  et  seq.  ; 
from  another  (Tlie  Young  Churchman)  :  Tye  v.  Finmore,  3  Camp.  462  ;  Yates  v. 
"Let  each  duty  be  done  for  the  Master  Pym,  6  Taunt.  446;  Cooper  v.  Elston,  7 
nobly  and  well,  that  your  work  may  be  T.  R.  14.  In  this  last  case  it  was  admitted 
lair  and  faultless,  and  worthy  of  his  accept-  by  counsel  that  the  sale  by  sample  was  the 
ance."  Here,  acceptance  means  more  than  same  as  an  immediate  sale  of  the  goods  if 
mere  rpceij)t.  they  had  been  on  the  spot.     In  Lorymer 

2  1  B.  &  S.  299.  V.  Smith,  1  B.  &  C.  1,  it  was  held  that  the 
^  10  ('.  B.  X.  s.  481.  buyer  of  a  parcel  of  wheat  by  sample  has 
*  While  a  delivery  of  a  sample  which  is     a  riglit  to  inspect  the  whole  in  bulk,  at 

not  delivered  !is  a  [)art  of  the  very  bulk  of  any  proper  and  convenient  time  ;  and  if 
the  goods,  do(!s  not  satisfy  the  require-  the  seller  refuses  to  show  it,  the  buyer 
ments  of  the  statute  as  to  an  actual  receipt     may  rescind  the  contract. 


426  COMMENTAEIES   ON   SALES.  [BOOK  IV. 

good  contract  with  respect  to  those  goods  which  have  been  actu- 
ally received,  —  that  so  much  embarrassment  has  arisen. 

Both  of  these  propositions  we  find  are  fully  sustained  by  the 
latest  English  cases,  —  Kibble  v.  Gough,i  Rickard  v.  Moore,^  and 
Page  V.  Morgan  (a.  d.  1885)  .^  And  yet  these  cases  fairly  abound 
with  errors  arising  out  of  Lord  Campbell's  utterly  unsound  propo- 
sition in  Morton  v.  Tibbett,^  that  the  same  goods  under  the  Statute 
of  Frauds  can  both  be  accepted  and  rejected,  —  a  position  which 
he  himself  evidently  found  so  utterly  untenable  as  a  sound  rule  of 
construction  of  the  statute,  as  to  lead  him  to  the  expression  of  a 
wish,  in  the  subsequent  case  of  Marvin  v.  Wallis,^  that  the  statute 
should  cease  to  exist. 

In  Kibble  v.  Gough  ^  there  was  a  sale  of  a  quantity  of  barley,  by 
sample,  at  an  agreed  price.  After  its  actual  receipt,  after  exami- 
nation, it  was  rejected  by  the  vendee  on  the  ground  that  it  was 
not  equal  to  sample,  the  vendee  requiring  the  vendor  to  take  the 
barley  back,  and,  on  the  latter  refusing  to  do  so,  notified  him 
that  the  barley  was  held  at  his  (the  vendee's)  warehouse  for  and 
at  the  risk  of  the  vendor.  In  an  action  for  the  price,  the  jury 
found  that  the  barley  was  equal  to  the  sample ;  and  hence,  that 
it  was  the  specific  goods  which  the  vendee  had  purchased  from 
the  vendor,  and  found  for  the  plaintiff. 

The  simple  ratio  decidendi  of  this  case  is  that  a  sale  by  sample 
being  a  sale  of  specific  goods,  those  very  goods  are  assented  to 
and  accepted  as  "  a  recognition  of  the  contract  between  the  par- 
ties"'' for  the  sale  of  these  specific  goods;  and  hence,  if  these 
very  goods  are  actually  received  by  the  vendee,  they  being  the  very 
goods  he  has  purchased,  assented  to,  recognized,  accepted,  he  can- 
not, after  he  has  actually  received  them,  reject  them.^ 

^  38  L.  T.  N.  s.  204.  ogous  to  that  of  a  specific  chattel,  because 

-  lb.  841.  the  very  thing  to  be  purchased  is  ascer- 

^  15  Q.  B.  Div.  228.  tained  by  the  offer  contained  in  the  letter 

15  Q.  B.  428.  of  application,  and  the  offer  is  subject  to 

="  6  E.  &  B.  726,  736.  no  other  condition  than  the  assent  of  the 

38  L.  T.  N.  s.  204.  persons  to  whom  it  is  made.     Each  share 

'  Per  Brainwell,  L.  J.,  at  p.  205.  is   a   right  to  a  fixed   proiiortion  of  the 

8  Thus  affirming  the  principles  estab-  profits  of  an  existing  undertaking,  subject 

lished  by  Cusack  v.  Robinson,  1  B.  &  S.  to  the  payment  of  an  ascertained  amount 

299,  recognized  and  affirmed  in  The  Bog  of  money  when   called   for.     Each   share 

Lead  Mining  Co.  v.  Montague,  10  C.  B.  gives  the  same  rights  as  every  other  ;  and 

N.  s.  481,  and,  in  effect,  reversing  Nichol-  there  is  not  necessarily  even  the  distinc- 

son  V.  Bower,  1  E.  &  E.  172,  and  Smith  tion  of  separate  numbers  until  the  register 

V.  Hudson,  6   B.  &  S.  431.     In  the  Bog  is  made  up,  if  even  then.     The  directors, 

Lead  Mining  Co.  v.  Montague,  10  C.  B.  therefore,  by  assenting  to  the  letter  of  ap- 

N.  s.  481,  490,  the  analogy  the  court  finds  plication  in  its  terms,  and  allotting  to  the 

between  a  sale  of  shares  of  stock  and  spe-  applicant  so  many  shares  as  he  has  applied 

cific  goods  is  equally  applicable  to  the  sale  for,  did  give  him  the  very  thing  for  which 

of  specific  goods  by  sample,  as  it  affects  he  had  asked,  and  of  which  he  had  by  an- 

the  "  acceptance  "  of  the  statute  of  frauds,  ticipation   testified  his   acceptance."      la 

The  court  say  :  "  Now  it  appears  to  us  very  the  same  way,  under  the  statute,  by  the 

clearly  that  a  purchase  of  shares  is  anal-  receipt  of  the  very  goods  which  have  been 


PART    VI.]  THE    ACCEPTANCE.  427 

But  while  this  is  the  clear  holding  of  the  case,  there  is  the 
usual  confounding  of  the  term  "  accept "  with  "  actually  receive," 
as  though  the  latter  necessarily  included  the  former,  Brett,  L.  J., 
on  the  argument,  actually  asking :  "  Suppose  there  was  no  sale 
by  sample,  but  merely  a  verbal  agreement,  then  does  not  the 
delivery  and  receipt  include  acceptance  ?"  Most  certainly  it  does 
not,  except  where  there  is  a  sale  of  specific  goods  by  sample  or 
otherwise ;  and  then  the  very  purchase,  as  we  have  claimed,  and 
as  the  cases,  including  Kibble  v.  Gough,^  show,  being  of  specific 
goods,  itself  constitutes  an  assent  to  and  acceptance  of  those  iden- 
tical goods  as,  to  use  again  the  words  of  Bramwell,  C.  J.,  in  this 
case,  "  amounts  to  a  recognition  of  the  contract  between  the  par- 
ties," —  exactly  what  the  acceptance  of  the  statute  is  as  distin- 
guished from  the  actual  receipt.  But  the  case  actually  holds  that 
the  sale  was  a  sale  of  ascertained  goods,  and  that,  in  such  a 
case,  on  the  actual  receipt  of  them,  the  property  in  them  passed 
at  once,  they  being  the  actual  goods  which  had  been  purchased ; 
that  the  acceptance  to  satisfy  the  statute  amounts  to  a  recogni- 
tion of  the  contract  between  the  parties ;  and  that  the  specified 
goods  purchased  having  been  received  as  and  being  equal  to  sam- 
ple, after  their  actual  receipt  there  was  no  right  of  rejection  by 
the  vendee ;  and  hence  the  verdict  was  sustained. 

Rickard  v.  Moore  ^  illustrates  the  correctness  of  the  second  of 
our  propositions,  stated  ante.  In  this  case  specific  goods  were 
sold  by  sample,  and  goods  were  actually  received,  but  were  found 
not  equal  to  sample  (the  jury  also  finding  this  fact),  and  the  ven- 
dee rejected  them.  The  court  sustained  the  finding.  This,  too, 
accords  with  the  view  -we  have  expressed,  and  with  our  reasoning 
throughout  this  protracted  and  exhaustive  examination  of  the 
subject.  The  case  is  not  only  clearly  distinguishable  from  Kibble 
V.  Gough,^  but  we  think  both  of  the  decisions  are  correct,  the 
specific  goods  which  were  bought  by  sample  being  accepted  and 
actually  received  in  the  one  case,  while  in  the  other  the  goods 
which  were  actually  received  were  not  the  goods  which  were  pur- 
chased, assented  to,  accepted,  and  recognized  as  the  subject  of  the 
contract, —  not  being  equal  to  sample,  and,  therefore,  not  being 
the  bulk  of  the  very  goods  which  were  bought. 

In  the  very  latest  English  case.  Page  v.  Morgan*  (a.  d.  1885), 
in  the  Court  of  Appeal,  affirming  the  judgment  of  the  Queen's 

purchased  by  sample,  the  vendee  gets  the  ^  38  L.  T.  N.  s.  204. 

very  suVyect  which  he  has  assented  to,  or  ^  lb.  841. 

accepted,  as  the  subject  of  tlie  sale,  quite  ^  //,_  204. 

as  much  as  though  at  the  time  of  the  pur-  *  15  Q.  B.  Div.  228. 

chase  there  had  been  specific,  ascertained, 

designated,  separated,  goods. 


428  COMMENTARIES   ON    SALES.  [BOOK   IV. 

Bench  Division,  there  is  a  still  further  confirmation  of  the  correct- 
ness of  the  positions  we  have  taken  througliout  this  Part,  al- 
though in  this  last  case,  as  in  so  many  other  of  the  Englisji  cases, 
there  is,  as  usual,  the  want  of  appreciation  of  the  correct  meaning 
of  the  term  "  accept "  of  the  statute.  Arising  out  of  this,  they 
seem  puzzled  over  the  holding  in  Kibble  v.  Gough  ^  as  compared 
with  that  in  Rickard  v.  Moore ;  ^  and  doubt  is  expressed  ^  whether 
these  cases  can  be  reconciled.  But  Baggally,  L.  J.,  though  laboring 
under  the  same  delusion  as  Lord  Campbell  in  Morton  v.  Tibbett,^ 
that  there  could  be  an  acceptance  under  the  statute  of  the  whole 
of  the  goods,  which  was  not  an  acceptance,  but  that,  notwithstand- 
ing such  an  acceptance,  there  could  be  its  exact  opposite,  a  rejec- 
tion, yet  did,  as  did  Bowen,  L.  J.,  recognize  the  clear,  undoubted 
distinction  between  the  two  cases,  —  that  in  Kibble  v.  Gough  "  the 
jury  found  that  the  goods  were  equal  to  sample,"  while  in  Rickard 
V.  Moore  "  the  jury  found  that  they  were  not  equal  to  sample ; " 
hence,  that  in  the  one  case  the  jury  found  that  the  very  goods 
which  had  been  purchased,  assented  to,  recognized,  approved,  ac- 
cepted, as  the  very  subject  of  the  contract,  had  been  actually  re- 
ceived, while  in  the  other  case  they  found  that  the  goods  which 
had  been  actually  received  were  not  the  goods  which  had  been 
purchased;  and,  therefore,  that,  notwithstanding  such  actual  re- 
ceipt of  such  goods,  those  goods  had  never  been  assented  to, 
recognized,  approved,  as  the  very  su])jcct  of  the  purchase ;  and, 
therefore,  never  having  been  accepted,  could  be  rejected.  Both  of 
these  cases  in  this  aspect  are  thoroughly  well  decided  without,  in 
either  of  them,  the  absurdity  of  Lord  Campbell,  Lord  Denman, 
Lord  Coleridge,  and  so  many  other  of  the  English  judges,  being 
necessary  to  be  adopted  or  sustained,  that  there  could  be  an  ac- 
ceptance of  goods  which  had  been  actually  received,  and  at  the 
same  time  there  be,  after  such  actual  receipt,  the  exact  opposite 
of  such  acceptance,  a  rejection  of  the  very  goods  which  had  been 
accepted. 

In  Page  v.  Morgan,^  the  defendant  bought  of  the  plaintiff,  by 
verbal  contract,  a  quantity  of  wheat,  the  sale  being  by  sample. 
The  wheat  was  sent  by  the  plaintiff  to  the  defendant  on  a  canal 
barge,  arriving  at  the  defendant's  mill  on  the  evening  of  March 
25 ;  and  at  eight  o'clock  on  the  morning  of  the  26th,  some  of  the 
sacks  containing  the  wheat  were,  by  direction  of  the  defendant's 
foreman,  hoisted  up  out  of  the  barge  on  to  the  mill  and  examined 
by  him.     After  twenty-four  sacks  had  been  hoisted  up  and  exam- 

1  38  L.  T.  N.  s.  204.  *  15  Q.  B.  428. 

'^  ^-  841.  6  15  Q.  B.  Div.  228. 

*  See  per  Brett,  M.  R.,  at  p.  232. 


PART    VI.]  THE    ACCEPTANCE.  429 

iiied,  the  foreman  sent  for  tlie  defendant,  who  examined  these 
and  thirty-eight  more  sacks ;  and  then,  at  nine  o'clock  of  the  same 
morning,  told  the  bargeman  to  send  up  no  more,  claiming  that 
the  wheat  was  not  equal  to  sample.  The  same  day  he  notified 
the  plaintiff  that  the  wheat  was  not  equal  to  sample,  and  that 
he  should  not  take  it.  Some  days  afterwards  the  wheat  taken 
into  the  mill  was  returned  to  the  barge,  and  remained  there,  the 
plaintiff  refusing  to  take  the  wheat  away.  It  was  finally  sold 
under  a  judge's  order,  and  the  proceeds  paid  into  court.  In  an 
action  for  the  price  of  the  wheat,  or,  in  the  alternative,  for  dam- 
ages for  its  non-acceptance,  the  jury  found  that  the  wheat  was 
equal  to  sample,  and  the  verdict  was  for  the  plaintiff. 

Here,  if  the  purchase  of  the  specific  goods  by  sample  had  not 
been  in  itself,^  when  the  identical  goods  purchased  were  subse- 
quently in  fact  received,  an  acceptance  of  them,  then,  clearly, 
there  was  no  acceptance  of  them  at  all,  as  the  rejection  of  the 
goods  after  their  receipt  was  prompt  and  unquestionable.  And, 
apart  from  the  acceptance  ah  initio,  there  was  here,  too,  a  much 
more  decided  rejection  of  the  goods,  in  every  sense,  than  there 
was  in  Rickard  v.  Moore,^  where  it  was  held  that  there  was  no 
acceptance  of  the  goods  within  the  exception  of  the  seventeenth 
section  of  the  statute.  But  the  difference  simply  was,  that  while 
in  Page  v.  Morgan  the  goods  accorded  with  the  sample,  and,  there- 
fore, were  the  identical  goods  purchased,  and,  as  the  designated 
goods,  were  approved,  assented  to,  recognized,  accepted,  as  the 
goods  which  were  actually  purchased  under  the  verbal  contract ; 
in  Rickard  v.  Moore  the  goods  actually  received  did  not  agree 
with  the  sample,  and  hence,  notwithstanding  the  actual  receipt, 
as  they  had  never  been  approved,  assented  to,  recognized,  ac- 
cepted, as  the  goods  which  were  actually  purchased,  as  they  had 
not  been  accepted  they  could  be  rejected ;    thus  differing  from 

1  And    see    Hinde    v.   Whitehouse,    7  other  consistent  intent  also  in  pursuance 

East,    558,  where  a   sale  by  sample  was  of  the  purposes  of  the  parties  as  expressed 

held  sufficient  at  common  law  to  pass  the  in  the  conditions  of  sale,  namely,  as  a  part 

property  in  the  specific  goods  sold  ;  and  delivery  of  the  thing  itself,  as  soon  as,  in 

the  delivery  of  the  sample,  as  a  part  of  virtue  of  the  bargain,  the  buyer  should  be 

the  bulk,  was  held  to  be  a  sufficient  re-  entitled  to  retain,  and   should   retain   it 

ceipt  of  a  part  of  the  goods  sold  to  meet  accordingly."      Here  the  sale  of  specific 

the  requirements  of  the  statute,  and  to  goods  by  sample  was  held  to  be  a  suffi- 

make  tlie  purchaser  liable  for  the  price  of  cient  sale  ;  to  be,  at  common  law,  an  ac- 

the  wliole  of  the  goods  sold,  as  he  would  ceptance  of,  or  assent  to,  the  actual  goods 

have  been  at  common  law  dehors  the  stat-  sold,  so  as  to  pass  the  property  in  them  ; 

ute,   although  the  goods  were  destroyed  and  equally  so,  therefore,  within  tlie  same 

by  fire  without  any  a>;tual  manual  trans-  meaning  of  the  term   acceptance    in  the 

mission    of  the    possession    having    been  statute  of  frauds,  does  it  satisfy  the  ac- 

made  to  the  purchaser.      Lord  EUenbor-  cepting  of  the  statute.      Ami  see   Noy's 

ough,  in  this  case,  said  :  "Although  the  Max.  88,  as   to  property  passing  by  the 

sample  be  delivered  partly  n.lio  inhiUu,  sale  of  s])ecific  goods, 
namely,  as  a  .sample  of  quality,   it  does  ^  33  L.  T.  N.  s.  841. 

not  therefore  prevent  its  operating  to  an- 


430  COMMENTARIES   ON  SALES.  [BOOK   IV. 

the  case  of  Page  v.  Morgan,  where  the  goods,  having  been  ac- 
cepted, could  not,  having  been  actuall}'  received,  be  rejected. 
That  is,  they  could  not  in  this  case  be  both  accepted  and  re- 
jected ;  unlike  the  other  case,  where,  not  having  been  accepted, 
they  could  be  rejected,  the  acceptance  of  a  sample  dilfering  from 
them  not  being  an  acceptance  of  the  different  goods  received. 

But  these  cases  were  necessary  to  sustain  our  whole  reasoning, 
and  to  show  its  soundness  and  consistency,  while,  on  the  other 
hand,  showing  the  unsoundness  and  radical  fallacy  of  the  obiter 
dictum  of  Lord  Campbell  in  Morton  v.  Tibbett,i  and  of  the  utter 
confusion  which  has  arisen  in  the  English  cases  resulting  from 
treating  the  accepting  and  the  actual  receiving  of  the  statute  as 
being  in  effect  the  same;  and  in  their  failing  to  discriminate  be- 
tween the  effect  of  an  actual  receipt  of  the  whole  of  the  goods 
bought  under  a  verbal  contract,  where  the  acceptance,  ab  initio, 
covers  the  very  goods  actually  received,  and  where  it  does  not. 
Accepting  does  not  mean  actually  receiving ;  and  accepting  specific 
goods  purchased  under  a  contract  does  not  mean  accepting  goods 
which  have  not  been  purchased  at  all.  There  may  be  an  accept- 
ance without  an  actual  receipt,  and  there  may  be  an  actual  receipt 
without  an  acceptance.  There  may  be  an  acceptance  of  specific 
goods  purchased,  and  there  may  be  a  refusal  to  accept  goods 
which  are  not  the  specific  goods  purchased.  But  it  is  a  contra- 
diction in  terms  and  a  gross  absurdity  to  say,  with  respect  to  the 
same  goods  which  have  been  actually  received,  that  they  have 
been  both  legally  accepted  and  legally  rejected. 

It  is  only  necessary  for  us  to  add,  in  closing  this  Part  on  this 
important  subject,  that  the  result  of  the  decisions  in  these  latest 
English  cases  of  Kibble  v.  Gough,^  Rickard  v.  Moore,^  and  Page  v. 
Morgan,*  is  to  fully  justify  our  criticism^  of  Nicholson  v.  Bower ^ 
and  Smith  v.  Hudson  ;7  both  of  which  latter  cases  were  sales  of 
specific  goods  by  sample,  which  goods  were  actually  received  by 
the  vendees,  so  that  the  stoppage  in  transitu  was  gone ;  no  question 
being  raised  in  either  of  them  as  to  the  goods  received  not  being 
equal  to  sample,  while  in  one  of  them  they  were  expressly  found 
to  be  equal  to  sample. ^     As  in  both  of  these  cases  the  very  goods 

15  Q.  B.  428.  this  is  an  acceptance  and  receiiit  of  part 

38  L.  T.  N.  s.  204.  of  the  goods  sold  to  take  the  case  out  of 

^  Ibid.  841.  the  statute,  so  that,  on  the  actual  delivery 

15  Q.  B.  Div.  228.  of  the  balance  of  the  goods,  the  propertj* 

^  Ante,  p.  400,  et  seq.  and  possession  in  such  balance  are  in  the 

1  E.  &  E.  172.  vendee    permanently,  unless   rejected  by- 

6  B.  &  S.  431.  hira  rightfully  as  iiot   according   to   the 

Where    goods    have    been    sold    by  sample.     But  if  he  do  not  reject  them,  it 

sample,  and  the  sample  has  been  deliv-  seems  to  us  clear  that  the  vendor,  having 

ered  as  and  for  a  part  of  the  bulk  of  the  delivered  them  as  and  for  the  goods  which 

goods  sold,  admittedly,  in  all  the  cases,  he  has  sold,  and  which  have  reached  the 


PART    VI.] 


THE   ACCEPTANCE. 


431 


which  were  purchased,  thereby  being  assented  to,  recognized, 
approved  of,  accepted,  were  in  effect  held  to  have  been  actually 
received,  —  clearly  and  unquestionably  so  in  Nicholson  v.  Bower, 
—  these  cases  are  no  more  in  harmony  with  the  holding  in  Kibble 
V.  Gough,  Rickard  v.  Moore,  and  Page  v.  Morgan,  than  we  con- 
sidered them  to  be  in  harmony  with  the  well-decided  cases  of 
Cusack  V.  Robinson!  and  The  Bog  Seal  Mining  Co.  v.  Montague,^ 
stated  by  us,  supra ,  p.  406  et  seq.^ 


i 


ultimate  possession  of  the  vendee,  so  that 
the  lien  is  gone  and  the  transitus  at  an 
end,  cannot  set  up  the  claim  that  there 
has  been  no  acceptance  of  the  balance  of 
the  goods,  on  the  ground  that  if  the  ven- 
dee found  that  they  did  not  accord  with 
the  sample  the  vendee  might  reject  them. 
If  so,  in  any  other  case  of  the  sale  of  goods 
where  there  had  been  an  acceptance  and  a 
receipt  of  part  of  the  goods  by  the  vendee, 
taking  the  case  out  of  the  statute,  and  the 
balance  of  the  actual  goods  sold  were  de- 
livered to  the  vendee,  the  vendor,  at  his 
election,  could  take  these  goods  back 
again,  although  literally  the  goods  sold, 
because  if  they  were  not  the  goods  sold, 
the  vendee  might  himself  reject  them. 
We  think  this  is  utterly  unsound.  In 
the  same  way,  where  there  has  been  a  sale 
by  sample,  as  in  Smith  v.  Hudson,  6  B. 
&  S.  431,  the  very  act  of  buying  goods  by 
sample  being  an  assent  to  the  goods  rep- 
resented by  the  sample  as  being  the  very 
subject  of  the  purchase,  we  think,  after 
an  actual  delivery  by  the  vendor  to  the 
vendee,  and  an  actual  receipt  by  the  ven- 
dee, so  that  the  right  of  stoppage  in  trans- 
itu is  gone,  and  the  goods  delivered  have 
been  received  and  retained  by  the  vendee 
without  objecting  to  them  as  not  accord- 
ing to  sample,  that  the  vendor  cannot  re- 
claim the  goods  simply  on  the  ground 
that  if  they  did  not  accord  with  the 
sample  the  vendee  might  reject  them,  par- 
ticularly where  there  is  not  a  tittle  of  evi- 
dence that  they  did  not  accord  with  the 
sample,  as  in  Smith  v.  Hudson,  6  B.  &  S. 
431  ;  or,  as  in  Nicholson  v.  Bower,  1  E. 
&  E.  172,  where  the  evidence  was  conclu- 
sive that  the  goods  did  accord  with  the 
.sample,  so  that  even  the  vendee  himself 
could  not  have  rejected  them. 

1  1  B.  &  S.  299. 

2  10  C.  B.  X.  s.  481. 

3  The  case  of  Cross  v.  O'Donnell,  44 
N.  Y.  661,  holds,  on  the  question  of  ac- 
ceptance, precisely  the  Same  doctrine  as 
the  ca.se  which  has  been  referred  to  by  us 
as  in  entire  liarmony  with  our  views,  — 
Cusack  V.  Eobinson,  1  B.  &  S.  299.  In 
each  of  those  ca.ses  the  acceptance  of  the 
statute  is  clearly  distinguished  from  the 
actual    receipt    required.       In    Cross    v. 


O'Donnell,  the  purchase  was  of  specific 
goods  deliverable  at  a  vessel  by  the  plain - 
tifl's  for  the  defendants.  The  goods  hav- 
ing been  lost  in  course  of  the  transit  by 
the  sinking  of  the  vessel,  the  defendants 
refused  to  pay  for  them.  An  action  was 
brought  in  Kew  York  for  the  price  of  the 
goods.  The  contract  was  made  in  ilary- 
land  ;  but  the  statutes  of  fraud  in  both  of 
these  States  are  substantially  the  same, 
and  similar  to  the  English  statute,  as  to 
the  acceptance  and  receipt  required.  The 
court  held  that,  under  the  facts  of  the 
case,  the  delivery  to  the  ves.sel  was  a  re- 
ceipt by  the  purchasers  ;  and,  correctly 
distinguishing  the  acceptance  from  the 
receipt,  they  held  that,  the  purchase  being 
of  specific  goods,  there  was  an  acceptance 
of  them.  Whatever  doubt  there  may  be 
as  to  the  correctness  of  the  holding  in  the 
case,  as  to  the  compliance  with  the  actual 
receipt  required  by  the  statute,  and  in 
connection  with  which  the  court  do  not 
manifest  the  .same  intelligence  as  they  do 
on  the  cognate  subject  of  acceptance,  on 
this  latter  subject  we  think  they  are  en- 
tirely right.  On  the  question  of  the  suf- 
ficiency of  the  acceptance.  Earl,  C,  in 
delivering  the  unanimous  judgment  of 
the  court,  says  :  "Theie  was  no  note  or 
memorandum  of  the  contract,  and  no  part 
of  the  purchase-money  was  paid  by  the 
buyers  ;  and  hence,  unless  the  buyers  ac- 
cepted and  received  the  hoops,  within  the 
meaning  of  the  statute,  the  contract  was 
void.  A  purcluiser  may  accept  unthmit 
receiving,  and  he  may  receive  without  ac- 
cept ivg  ;  and  in  order  to  comj^Iy  loith 
t/cc  statute  of  frauds,  he  must  both  accejyt 
and  receive.  Here  the  dei'endants  ac- 
cepted the  hoops.  One  of  them  .saw  them 
in  the  plaintiffs'  yard  ;  a7id  the  contract 
had  reference  to  this  particular  lot  of  hoops 
vliich  the,  plaintiffs  finally  delivered. 
There  is  notliing  in  the  statute  which 
requires  that  the  accepting  and  receiving 
shall  be  at  the  same  time.  Either  may 
precede  the  other  ;  and,  after  both  have 
concurred,  the  statute  has  been  complied 
with,  and  the  contract  becomes  operative 
and  valid.  The  defendants  agreed  to  take 
these  identical  hoops;  and  after  receiving 
them  ami  thus  fully  complying  with  the 


432 


COMMENTARIES   ON    SALES. 


[book  IV. 


statiitt',  they  could  not  reject  them  upon 
iiny  objection  to  their  quality."  And, 
again,  in  considering  the  question  as  to 
whether  the  receipt  by  "  the  agents  of  the 
defendants  for  the  purpose  of  receiving  the 
hoops  from  the  plaintiffs" {a)  was  the  re- 
ceipt of  the  defendants,  they  say  :  "It  is 
not  necessary  to  determine  in  this  case 
that  a  mere  carrier  designated  by  the 
buyer  can  both  accept  and  receive  for 
him,  so  as  to  make  a  compliance  with  the 
statute  ;  but  I  can  find  no  reason  founded 
iipon  principle  or  authority  to  doubt  that, 
after  the  buyer  has  accepted  the  article  pur- 
chased, a  cari'ier,  designated  by  him  to 
take  and  transport  it,  can  bind  him  as  his 
agent  by  receiving  it."  (6) 

From  the  confusion  which,  as  we  have 
shown,  exists  in  so  many  of  the  old  Eng- 
lish cases  in  failing  to  discriminate  between 
the  acceptance  and  the  actual  receipt  of 
the  statute,  it  is  not  at  all  surprising  that 
similar  confusion  is  to  be  found  in  the 
cases  in  this  country,  where  the  rule  so 
generally  prevails  of  following  the  English 
decisions.  Hence  it  will  be  found  that, 
in  this  country  as  in  England,  cases 
abound  where  acceptance  is  treated  as 
though  it  could  not  be  separated  from  the 
actual  receipt  of  the  statute.  In  the  very 
recent  case  (a.  d.  1887),  in  the  Supreme 
Court  of  the  United  States,  of  Hinchman 
V.  Lincoln,  124  U.  S.  38,  49,  we  find  the 
court  using  such  language  as  that  "ac- 
ceptance implies  delivery,"  when,  of 
course,  it  implies  nothing  of  the  kind  ; 
and,  as  is  well  shown  by  Cusack  v.  Rob- 
inson, 1  B.  &  S.  299,  in  England,  and  by 
the  above-cited  case  of  Cross  v.  O'Donnell, 
44  N.  Y.  661,  in  this  countrj%  the  accept- 
ance may  take  place  entirely  independent 
of  delivery,  which  implies  not  acceptance 
but  receipt.  The  language  used  by  the 
Supreme  Court  of  the  United  States  in 
Hinchman  v.  Lincoln,  124  U.  S.  38,  49, 
is  quoted  from  Shiudler  v.  Houston,  1 
N.  Y.  261,  265,  where  it  is  said:  "In 
a  word,   the   statute   of  fraudulent   con- 

(«)  If  they  were  "the  agents  of  the  de- 
fendants" to  receive  the  goods  from  the 
plaintiffs,  then,  of  course,  their  receipt  was 
the  receipt  of  the  defendants  ;  and  on  the 
receipt  of  the  goods  by  the  defendants' 
agents,  the  transitus,  as  between  the 
plaintiffs  and  defendants,  was  ended,  and 
the  former  had  no  longer  a  lien  for  the 
price,  nor  the  right  to  exercise  stoppage  in 
transitu.  The  language  of  the  statute  is, 
"■' actually  receive;"  and  it  is  clear  that 
whether  this  actual  receipt  be  by  the  pur- 
chaser of  the  goods  himself,  or  by  his 
agent,  it  is  equally  as  effective  and  con- 
clusive for  all  i)urposes  in  the  one  case  as 
in  the  other.  We  have  already  discussed 
this  question  in  the  text,  and  shall  refer 


veyances  and  contracts  pronounced  this 
agreement,  when  made,  void  unless  the 
buyer  should  '  accept  and  receive  some 
part  of  the  goods.'  The  language  is  un- 
equivocal, and  demands  the  action  of  both 
parties,  lor  acceptance  implies  delivery, 
and  there  can  be  no  complete  delivery 
without  acceptance.  The  defendant,  how- 
ever, said  nothing  and  did  nothing  subse- 
quent to  the  agreement,  except  through 
his  'agent,  to  repudiate  the  contract. 
There  was  consequently  no  evidence  of  a 
delivery."  Hence,  if  acceptance  had  been 
used  in  its  legitimate  sense,  and  not  as 
synonymous  with  the  actual  receipt  of  the 
statute,  the  conclusion  would  be  that,  as 
"acceptance  implies  deliver}',"  and  as 
there  was  in  this  case  "no  evidence  of 
a  delivery,"  there  could,  therefore,  be  no 
evidence  of  acceptance.  All  of  this  con- 
fusion is  the  result  of  adopting,  as  was 
done  in  this  case,  the  language  of  the 
English  cases,  as  in  Phillips  v.  BistoUi, 
2  B.  &  C.  511,  51.5,  cited  in  Shindler  v. 
Houston,  1  N.  Y.  at  p.  265,  the  English 
court  there  using  the  term  "actual  ac- 
ceptance" where  they  meant  actual  re- 
ceipt, ti'eating  the  acceptance  of  the  stat- 
ute as  being  either  meaningless  or  as 
covered  by  the  actual  receijit.  Thus  : 
"In  order  to  satisfy  the  statute,  there 
must  be  a  delivery  of  the  goods  by  the 
vendor,  with  an  intention  of  vesting  the 
right  of  possession  in  the  vendee,  and 
there  must  be  an  actual  acceptance  [!]  by 
the  latter,  with  an  intention  of  taking  to 
the  possession  as  owner.  It  lies  upon  the 
plaintiff  in  this  case  to  make  out  that 
there  was  such  delivery  and  acceptance." 
And  so  on  through  the  whole  judgment, 
the  term  "actual  accejitance"  being  used 
throughout  it  as  though  it  were  simply 
sui'plusage,  or  else  was  identical  with  the 
"actual  receipt"  of  the  statute.  And 
yet,  in  Phillips  v.  Bistolli,  under  such 
well-decided  cases  on  the  acceptance  of 
the  statute,  as  Cusack  f.  Robinson,  1  B. 
&  S.  299,  and  Cross  v.  O'Donnell,  44  N. 

to  it  again  in  a  later  volume  of  this  work, 
in  discussing  the  general  subject  of  stop- 
page in  transitu. 

(b)  Obviously,  then,  if  and  when  the 
carrier  binds  his  principal  as  the  latter's 
agent  for  receiving  the  gooils,  the  receipt 
of  the  agent  is  the  receipt  of  the  principal, 
and,  therefore,  the  principal  having  "ac- 
tually" received  the  goods,  the  goods 
have  passed  into  his  possession  and  con- 
trol, the  transitus  as  between  seller  and 
buyer  has  terminated,  and,  therefore,  the 
right  of  stoppage  in  transitu  has  ceased  to 
exist.  The  case  on  this  branch  of  the 
subject  is,  we  think,  very  badly  reasoned, 
and  not  by  any  means  good  law. 


PART    YI.] 


THE    ACCEPTANCE. 


433 


Y.  661,  there  was  no  question  as  to 
tlie  acceptance  at  all,  as  the  case  was  one 
of  specific  articles,  the  very  purchase  of 
which  was  the  accepting,  the  assenting 
to,  as  the  very  subject  of  the  purchase, 
and  the  only  question  was  whether  the 
possession  of  the  goods  for  a  few  minutes 
was  a  receipt  to  satisfy  the  statute.  And 
so  in  Shindler  v.  Houston,  1  N.  Y.  261, 
itself,  the  acceptance  of  the  goods,  as  -the 
specific  subject  of  the  purchase,  was  un- 
doubted, the  whole  question  being  as  to 
whether  there  was  "a  transfer  of  the  pos- 
session,"—  the  actual  receipt  of  the  stat- 
ute. This  is  well  shown  by  the  head- 
notes  of  the  case,  which  are  as  follows  : 
"  Plaintiff  and  defendant  bargained  re- 
specting the  sale  by  the  former  to  the 
latter  of  a  quantity  of  lumber,  piled  apart 
from  other  lumber,  on  a  dock,  and  in  view 
of  the  parties  at  the  time  of  the  bargain, 
and  which  before  that  time  had  been 
measured  and  inspected.  The  parties 
having  agreed  as  to  the  price,  the  plain- 
tiff said  to  the  defendant,  'The  lumber 
is  yours.'  The  defendant  then  told  the 
plaintiff  to  get  the  inspector's  bill  and 
take  it  to  one  House,  who  would  pay  the 
amount.  This  was  done  the  next  day, 
but  payment  was  refused.  The  price  was 
over  fifty  dollars.  Held,  in  an  action  to 
recover  the  price,  that  there  was  no  de- 
livery and  acceptance  [!]  of  the  lumber 
within  the  meaning  of  the  statute  of 
frauds,  and  that  the  sale  was  therefore 
void.  It  seems  that  to  constitute  a  de- 
liver}' and  acceptance  [!j  of  goods,  such  as 
the  statute  requires,  something  more  than 
mere  words  is  necessary.  Superadded  to 
the  language  of  the  contract,  there  must 
be  some  act  of  the  parties  amounting  to  a 
transfer  of  the  possession,  and  an  accept- 
ance thereof  by  the  buyer.  The  case  of 
cumbrous  articles  is  not  an  exception  to 
this  rule."  All  this  shows  entire  failure 
to  appreciate  the  acceptance  of  the  statute, 
as  there  distinguished  from  the  different 
entity,  —  the  actual  receipt.  The  error  of 
the  courts  in  this  country,  like  that  which 
we  have  shown  has  been  so  persistently 
committed  by  the  English  courts,  is  well 
illustrated  by  the  New  York  case  of  Ham 
V.  Van  Orden,  4  Hun,  709.  There,  as  in 
the  previous  New  York  ca.se  of  Cross  v. 
O'Donnell,  44  N.  Y.  661,  there  was  a 
purchase  of  specific  articles,  which,  as  we 
have  seen,  is  an  acceptance  of  them  within 
the  language  of  the  statute  ;  an  assenting 
to  them  as  tlie  very  subject  of  the  jiur- 
chase.  The  court,  in  Ham  v.  Van  Orden, 
4  Hun,  709,  at  p.  761,  in  failing  to  dis- 
tinguish between  the  acceptance  and  the 
actual  receipt  of  the  statute,  make  dreadful 
confusion  in  the  matter.  They  say:  "It 
is  said  that  the  acceptance  and  the  receiv- 
ing may  be  at  dilferent  times.  Cross  v. 
TOL   ir.  28 


O'Donnell,  44  N.  Y.  661.  Even  if  this 
be  correct,  it  cannot  be  said  that,  in  the 
present  ease,  there  was  any  acceptance  of 
the  goods  by  the  act  of  Watson.  Assum- 
ing that  the  goods  were  to  be  delivered  to 
the  defendant  at  the  plaintiff's  house,  yet, 
as  the  contract  was  verbal,  it  was  neces- 
sary that  he  should  manifest  his  accept- 
ance by  some  act.  So  that  the  delivery  of 
the  goods  by  the  plaintiff  to  Watson,  that 
they  might  be  carried  to  the  defendant's 
house,  was  not  an  acceptance  by  him. 
And,  indeed,  the  plaintiff  does  not  argue 
that  the  delivery  to  Watson  was  an  ac- 
ceptance, but  that  the  acceptance  had  pre- 
ceded. No  such  acceptance,  as  is  before 
said,  had  in  fact  taken  place,  and  Watson 
had  no  authority  from  the  defendant  to 
accept."  The  contention  of  the  plaintiff 
was  thus  stated  by  the  court:  "The 
plaintiff  claims  that  the  defendant  ac- 
cepted the  furniture,  because,  in  the 
presence  of  the  furniture,  he  agreed  to 
buy  it,  and  then  that  he  received  it  the 
next  day  by  its  delivery  to  Watson,  al- 
leged to  be  his  agent  for  that  purpose." 
Under  the  authority  of  the  well-decided, 
cases  on  the  subject  of  acceptance,  of 
Cusack  V.  Robinson,  1  B.  &  S.  299,  and 
Cross  V.  O'Donnell,  44  N.  Y.  661,  an  ac- 
ceptance, at  least  by  such  facts,  would 
well  be  shown,  and  would  not  sustain 
the  answer  of  the  court.  "But  the  mere 
words  of  the  contract  for  sale  are  not  ac- 
ceptance. Acceptance  requires  that  the 
vendee  should  also  act  (not  talk),  and 
that  his  act  should  be  of  such  a  nature 
as  to  indicate  that  he  received  and  ac- 
cepted [the  whole  requirements  of  the  stat- 
ute being  here  met ;  not  the  acceptance 
alone]  the  goods  delivered  as  his  property. 
Kodgers  v.  Phillips,  40  N.  Y.  519,  524." 

Smith  V.  StoUer,  26  Wis.  671,  al- 
though not  verbally  discriminating  be- 
tween the  accejitance  and  the  ac^tual 
receipt  of  the  statute  in  very  clear  terms, 
does  hold,  where  there  was  a  sale  of  goods 
by  sample  for  more  than  $50,  and  an  actual 
receipt  of  the  goods  hy  the  defendant,  but 
within  a  reasonable  time  after  he  examined 
the  goods  he  refused  to  keep  them,  that 
if  the  defendant  received  th(^  goods  with 
the  intention  of  keeiiing  them  if  they 
agreed  with  the  sample,  and  they  did 
agree  with  the  sample,  tliis  was  an  accept- 
ance of  them.  Here  the  receipt  is  one 
thing,  the  acceptance  quite  another.  In 
Bacon  v.  Eccles,  43  Wis.  227,  in  an  action 
by  tha  vendees  for  bi'cach  of  a  contract 
to  deliver  goods,  tlie  question  arose 
whether  there  had  been  an  acceptance  and 
receipt  of  the  goods  to  take  tlie  case  out 
of  the  statute.  The  sale  was  of  specifically 
designated  goods,  "  Canton  C.  C"  sugar. 
The  vendees  received  the  sugar;  but  re- 
jected it  on  the  ground  that  it  did  not 


43-4 


COMMENTARIES   ON  SALES. 


[book  IV. 


come  within  the  description  of  "  Can- 
ton C.  C."  sugar.  The  court  on  the 
trial,  going  beyond  the  holding  in  Smith 
V.  Stoller,  26  Wis.  671,  instructed  the 
jury  that  if  the  plaintiffs  received  the 
goods  with  the  intention  of  accepting 
them,  the  case  was  taken  out  of  the 
statute,  even  though  tlie  quality  of  the 
goods  was  not  the  same  as  that  of  those 
purchased.  The  jury  found  for  the 
plaintilfs.  The  effect  of  such  finding  is 
remarkable.  It  really  involves  this  con- 
tradiction :  That  the  plaintiffs  received 
and  accepted  the  goods  ;  the  statute  was 
satisfied  and  the  contract  was  performed  ; 
and,  on  the  other  hand,  that  the  plain- 
tiffs did  not  accept,  but  rejected,  the 
goods;  the  contract  was  not  performed, 
and  the  plaintiffs  were  entitled  to  dam- 
ages for  the  breach  of  contract  ;  i.e., 
that  the  same  goods  were  accepted 
and  rejected  ;  the  statute  w^as  satisfied  by 
the  acceptance,  and,  at  the  same  time, 
the  plaintiffs,  having  rejected  the  goods, 
were  entitled  to  their  damages  for  the 
breach  of  contract.  The  Supreme  Court 
of  Wisconsin  directed  a  new  trial,  very 
properly  holding  that  there  had  been  mis- 
direction in  the  court  below.  We  think 
the  principle  governing  both  of  these  cases 
(Smith  V.  Stoller,  26  Wis.  671,  and  Bacon 
V.  Eccles,  43  Wis.  227)  is  that  for  which 
we  have  contended  during  our  discussion 
of  this  subject,  and  which  we  have  de- 
duced from  the  latest  English  cases,  and 
under  which  the  holding  in  both  of  these 
Wisconsin  cases  can  be  sustained ;  viz., 
that  whether  the  sale  be  by  sample,  or  is 
of  specific  or  distinguished  goods,  and 
goods  have  been  delivered  by  the  vendor 
and  actually  received  by  the  vendee,  and 
those  goods  conform  to  the  sample,  or  are 
the  specific  or  distinguished  goods  pur- 
chased (as  in  Cusack  v.  Kobinson,  1  B.  & 
S.  299),  they,  by  the  very  act  of  purchase 
having  been  accepted,  assented  to,  agreed 
upon  as  the  subject  of  the  sale,  cannot  be 
rejected  ;  but  if  the  goods  delivered  are 
not  according  to  the  sample,  or  are  not  the 
specific,  distinguished  goods  w'hich  have 
been  purchased  (and  by  the  very  act  of 
their  being  purchased  been  accepted,  ap- 
proved, agreed  upon  as  the  subject  of  the 
purchase),  then  there  has  been  no  accept- 
ance of  them,  and,  notwithstanding  their 
actual  receipt,  they  may  be  rejected  as  not 
being  the  subject  of  the  purchase.  In 
Knight  V.  Mann,  118  Mass.  143,  145, 
citing  Cusack  v.  Robinson,  1  B.  &  3.  299  ; 
Bog  Lead  Mining  Co.  v.  Montague,  10 
C.  B.  N.  s.  481,  it  is  in  effect  admitted 
that  the  purchase  of  a  specific,  ascertained 


chattel,  which  the  buyer  inspected  and  ex- 
amined at  the  time  of  the  agreement,  is  an 
acceptance  of  the  chattel  to  satisfy  the 
acceptance  of  the  statute.  So  in  Towns- 
end  V.  Hargraves,  118  Mass.  325,  331, 
it  is  said  by  the  court,  to  show  an  ac- 
ceptance within  the  statute  :  "The  plain- 
tiff relied  on  an  oral  contract  of  sale 
to  the  defendant  of  a  quantity  of  wool 
in  bales  then  in  Boston,  and  held  in 
store  by  one  Williams.  The  sale  was  by 
sample  for  a  given  price  per  pound,  and 
the,  bales  were  specifically  designated  and 
appropriated  by  the  terms  of  t/ie  contract." 
See  Brewster  v.  Taylor,  63  N.  Y.  587, 
where  there  was  a  purchase  of  a  specific 
article,  which,  as  in  Cusack  v.  Robinson, 
1  B_  &  S.  299,  constituted  an  acceptance  ; 
but  the  court  held  that  there  was  not  an 
acceptance,  meaning  that  there  was  not  a 
receipt.  See  Smith  v.  Brennan,  62  Mich. 
349  ;  Somers  v.  McLaughlin,  57  Wis.  358  ; 
Gaslin  v.  Pinney,  24  Minn.  322  ;  Taylor 
V.  Mueller,  30  Minn.  343  ;  Fontaine  v. 
Bush,  40  Minn.  141.  In  Jones  v.  Mechan- 
ics' Bank,  29  Md.  287,  293,  it  is  incor- 
rectly said  :  "  Whilst  there  can  be  no 
acceptance  under  the  statute  without  de- 
livery by  the  seller,  yet  there  must  be  both 
delivery  and  acceptance  in  order  to  sustain 
an  action  upon  the  contract."  Here  the 
misuse  of  the  term  "acceptance,"  where 
"  actual  receipt  "  was  meant,  is  very  pal- 
pable. But  in  the  later  case  in  the  same 
court  of  Hewes  v.  Jordan,  39  Md.  472,  it 
is  more  correctly  said  by  the  court  : 
"  From  the  plain  meaning  of  the  terms  of 
the  statute  itself,  independent  of  all  au- 
thority, the  concurrence  of  two  distinct 
acts  on  the  part  of  the  vendee  would  seem 
to  be  required.  He  must  accept,  and  he 
must  actuall}'  receive  part  of  the  goods,  in 
order  to  render  the  contract  binding  on 
him.  There  may  be  an  actual  receipt 
without  any  acceptance,  and  there  may 
be  an  acceptance  without  any  receipt ; 
but  if  both  these  acts  concur,  with  the  in- 
tention of  the  parties  that  the  vendee 
shall  take  possession  of  the  goods  under 
the  contract  as  owner,  then  the  latter  must 
be  taken  as  having  made  a  final  election 
to  accept  the  goods,  or  such  part  of  them 
as  he  may  actually  have  received,  as  his 
property,  and  at  the  same  time  assent  to 
their  being  such  as  will  satisfy  the  con- 
tract ;  {a)  and  acceptance  and  receipt  being 
thus  complete  to  bind  the  contract,  the 
vendee  cannot  afterwards  withdraw  his 
acceptance  and  reject  the  goods,  except  it 
be  on  the  ground  of  fraud."  There  is 
much  otherwise  in  the  judgment  (see  par- 
ticularly at  pp.  483,  484)  which  presents 


(a)  The  italics  are  ours,  and  the  Ian-     question  as  the  exact  equivalent  of  the 
gnage   is   precisely   that   which   we  have     acceptance  of  the  statute, 
used  throughout    our    discussion   of  the 


PART    VI.] 


THE   ACCEPTANCE. 


435 


views  identical  with  those  expressed  by  us 
in  our  investigation,  and  in  condemnation 
of  many  of  the  badly-decided  English  cases 
on  the  subject.  The  case  is  a  very  valu- 
able one,  and  is  in  effect  the  same  as 
Cusack  V.  Kobiuson  ;  is  decided  the  same 
way,  and  is  the  most  intelligently-decided 
case  on  the  subject  we  have  found  re- 
ported in  this  country.  Our  view  as  to 
the  correctness  of  our  deduction  from  the 
latest  English  cases  in  sustaining  our  con- 
tention as  to  what  is  the  acceptance  of  the 
statute,  is  strengthened  by  our  examina- 
tion of  these  American  cases. 

The  case  of  Caulkins..w.  Hellman,  47 
N.  Y.  449,  is  not  decided  in  accordance 
with  our  view  as  to  the  holding  and  cor- 
rectness of  the  latest  English  cases.  In 
Caulkins  v.  Hellman  the  sale  was  a  verbal 
sale  of  goods  by  sample.  There  in  the 
court  below  the  judge  directed  the  jury 
that,  if  the  goods  were  actually  delivered, 
in  pursuance  of  the  verbal  contract  to  the 
purchaser's  agents,  in  good  order  in  mer- 
chantable condition,  and  corresponded  in 
quality  and  in  all  substantial  and  material 
respects  with  the  samples,  the  statute  was 
satisfied.  The  jury  found  on  these  points 
in  favor  of  the  vendor  in  his  action  for  the 
price  of  the  goods.  The  Supreme  Court 
of  New  York  aflirraed  the  judgment,  on 
this  finding  of  the  jury.  On  appeal  to 
the  New  York  Court  of  Appeals  the  judg- 
ment was  reversed  and  a  new  trial  was 
ordered.  The  Court  of  Appeals  in  this 
case  (see  at  p.  456)  use  tlie  terms  "accept 
or  appropriate,"  "  acceptance  or  appropria- 
tion," as  though  these  were  convertible 
terms.  We  think,  as  we  have  very  fully 
shown,  that  as  the  term  "  accept  " 
is  used  in  the  statute  of  frauds  its 
meaning  is  very  diff'erent  from  "  appropri- 
ate," which  word,  although  not  the  same, 
is  nearer  to  the  "actual  receipt"  of  the 
statute  than  it  is  to  the  term  "accept." 
Similar  conflict  to  that  manifested  between 
the  Supreme  Court  and  the  Court  of  Ap- 
peals of  New  York  on  the  subject  in 
Caulkins  v.  Hellman,  47  N.  Y.  449,  again 
appears  in  Stone  v.  Browning,  51  N.  Y. 
211  ;  68  N.  Y.  598.  This  was  another 
case  of  a  verbal  sale  of  goods  by  sample. 
After  a  receipt  of  the  goods  by  the  pur- 
chasers they  refused  to  jiay  for  them, 
and  sent  them  back  to  the  sellers.  In 
an  action  for  the  price,  the  statute  of 
frauds  was  relied  on.  The  judge  on  the 
trial  directed  the  jury,  among  other 
things,  in  effect,  that  if,  after  receipt  and 
examination  of  the  goods  by  the  defend- 
ants, the  goods  corres[ionded  with  the 
samples,  the  statute  was  satisfied  ;  but 
if,  at  the  close  of  the  examination,  the 
goods  proved  to  be  inferior  to  the  samples, 
the  defendants  had  the   right   to   return 


them.  The  verdict  for  the  plaintiffs  was 
affirmed  by  the  Supreme  Court  and  re- 
versed by  the  Court  of  Api)eals  (51  N.  Y. 
211).  On  a  second  trial  the  Supreme 
Court  again  affirmed  the  judgment  for 
the  plaintiffs,  which  again  was  reversed 
by  the  Court  of  Appeals  (68  N.  Y. 
598).  These  cases  were  decided  prior 
to  the  latest  English  cases  discussed  by 
us  in  the  text  ;  and  the  old  English 
cases,  such   as  Phillips  v.    P>istolli,  2  B. 

6  C.  511  ;  Smith  v.  Surman,  9  B.  &  C. 
561  ;  Howe  v.  Palmer,  3  B.  &  Aid.  321  ; 
and  Hanson  v.  Armitage,  5  B.  &  Aid.  557, 
containing  such  language  as  "  actual  ac- 
ceptance," "  part  acceptance,"  etc.,  used  in 
these  cases  rather  in  reference  to  the  actual 
receipt  than  the  acceptance  of  the  statute, 
were  relied  on  by  the  New  York  Court  of 
Appeals  to  sustain  their  decisions.  The 
mass  of  the  American  cases,  as  we  have 
before  intimated,  will  be  found  to  follow 
those  old  English  cases,  where,  as  we  have 
fully  shown,  there  is  such  a  com])lete 
failure  to  distinguish  between  the  accept- 
ance and  the  actual  receif>t  of  the  statute. 
A  consideration  of  the  eti'ect  of  the  latest 
English  decisions  may  lead  to  what  is, 
we  think,  a  more  correct  understanding 
of  the  meaning  of  the  statute.  For 
additional  American  cases  on  the  sub- 
ject, see  Eodgers  v.  Phillips,  40  N.  Y. 
519  ;  Johnson  v.  Cuttle,  105  Mass.  447  ; 
Snow  V.  Warner,  10  Met.  132  ;  Marsh  v. 
Hyde,  3  Gray,  331  ;  Ullman    v.    Barnard, 

7  Gray,  554  ;  Ross  v.  Welch,  11  Gray, 
235 ;  Dole  v.  Stimpson,  21  Pick.  284  ; 
Remick  v.  Sandford,  120  Mass.  309  ; 
Atherton  v.  Newhall,  123  Mass.  141  ; 
Meehan  v.  Sharp,  151  Mass.  564  ;  Au- 
denreid  v.  Randall,  3  Cliff.  99,  113  : 
Dows  V.  Greene,  24  N.  Y.  638 ;  Quintard 
V.  Bacon,  99  Mass.  185  ;  Borrowscale  v. 
Bosworth,  lb.  378,  381  ;  Gray  v.  Davis, 
10  N.  Y.  285  ;  Marsh  v.  Rouse,  44  N.  Y. 
643  ;  Allard  v.  Greasert,  61  N.  Y.  1  ; 
Oilman  v.  Hill,  36  N.  H.  311  ;  Gault  i-. 
Brown,  48  N.  H.  183  ;  Pinkham  v.  Mat- 
tox,  53  N.  H.  600  ;  Grimes  v.  Van 
Vechten,  20  Mich.  410  ;  Smith  v.  Bren- 
nan,  62  Mich.  349  ;  Simpson  v.  Krum- 
dick,  28  Minn.  352  ;  Brownlee  v.  Bolton, 
44  Mich.  218;  Maxwell  v.  Brown,  39  Me. 
98  ;  Dyer  v.  Libliy,  61  Me.  45.  To  these 
an  almost  indefinite  number  of  cases  might 
be  added,  which,  like  the  mass  of  these,  fol- 
low the  old  English  cases,  where  the  dis- 
tinction which,  as  we  have  shown,  really 
exists  between  the  acceptance  and  the 
actual  receipt  of  the  statute  has  been 
ignored,  and  the  terms  "accept  and 
actually  receive "  treated  as  meaning 
nothing  more  than  "receive  and  actually 
receive"  ! 


436  COMMENTARIES  ON  SALES.  [BOOK  IV. 


BOOK    lY. 

PART   VII. 
THE    ACTUAL    RECEIPT. 

In  considering,  in  the  next  preceding  Part,  the  question  of  the 
acceptance  under  the  Statute  of  Frauds,  which,  with  the  actual 
receipt  of  some  part  of  the  goods  sold,  is  necessary  to  cause  the 
contract  to  be  "  allowed  to  be  good,"  we  have  seen  that  the  term 
"  and  actually  receive  the  same "  had  relation  not  to  the  par- 
ticular kind  of  receipt,  which,  with  the  acceptance,  was  neces- 
sary to  make  the  contract  for  the  sale  a  binding  one,  but  to  the 
acceptance  itself ;  the  acceptance  being  one  thing  and  the  actual 
receipt  quite  another.  This,  notwithstanding  the  inextricable 
confusion  on  the  subject  existing  in  the  English  cases,  and  the 
repeated  declarations  of  many  of  the  very  ablest  of  the  English 
judges  that  there  is  essentially  no  difference  or  distinction  be- 
tween the  acceptance  and  the  actual  receipt  of  the  statute,^  we 
think  we  have  made  perfectly  clear. 

We  have  seen  that  the  term  "  accept "  is  there  used,  as  it  is  in 
other  cases,  in  the  sense  of  assent,  rather  than  that  of  receipt, 
and  that  the  term  actual  receipt,  in  distinction  from  the  accepting 
or  assenting,  could  be  any  "actual,"  positive,  absolute,  uncondi- 
tional receipt  that  the  subject-matter  admitted  of,  that  would  be 
good  at  common  law,  whether  such  receipt  was  manual,  construc- 
tive, or  symbolical.  This,  we  think,  in  showing  the  distinctive 
meaning  of  the  accepting  of  the  statute,  we  have  made  clear 
beyond  controversy. 

The  actual  receipt  consisted  in  Searle  v.  Keeves,^  where  there 
were  goods  in  a  warehouse,  in  the  delivery  of  an  order  on  tlie 

1  See  Hopton  v.  McCarthy,  10  L.  E.  Ir.  the  terminus  of  the  route,  and  it  was  held 

266,  270  :   "  In  some  of  the  cases  receipt  that  tliey  were  received  by  tlie  defendant ; 

and  acceptance  seem  to  be  considered  the  but  as  they  were  promptly  rejected  by  him, 

same."     And  per  Cockburn,  C.  J.,  in  Cas-  and  acceptance  of  them  refused,  the  court 

tie  V.  Sworder,  6  H.  &  N.  835  :  "  The  ques-  held  that  the  case  was  withiu  the  statute, 

tion  for  us  is  whether  there  was  any  evi-  both  acceptance  and  receipt  beins;  neces- 

dence  of  an  acceptance  and  receipt  of  the  sary,  and  that,  in  this  case,  though  there 

goods  to  satisfy  the  statute.     I  think  that  was  the  actual  receipt,  there  was  not  the 

these  terms  are  equivalent."   In  Hopton  t).  acceptance. 
McCarthy,  supra,  goods  ordered  by  the  de-  2  2  Esp.  598. 

fendant  had  reached  the  railway  station  at 


PART   VII.]  THE   ACTUAL   RECEIPT.  437 

warehouseman  by  the  vendor  to  the  vendee,  and  a  delivery  of 
the  order  by  the  vendee  to  the  warehouseman,  without  any  other 
actual  taking  possession  of  the  goods  by  the  vendee,  and  it  was 
held  by  Eyre,  C.  J.,  that  this  was  a  sufficient  actual  receipt  to 
satisfy  the  statute.  And  in  Chaplin  v.  Rogers,^  where  the  goods 
were  ponderous,  as  a  stack  of  hay,  it  was  held  that  both  within 
the  Statute  of  Frauds,  and  in  an  action  for  goods  sold  and  deliv- 
ered, the  jury  might  find  an  actual  receipt  of  the  hay  by  the  ven- 
dee, without  its  having  been  actually  handed  over  to  him  by  the 
vendor,  if  it  was  the  intention  of  both  the  parties,  who  were  pres- 
ent at  the  stack  of  hay  where  the  contract  for  the  sale  was  made, 
that  there  should  be  an  actual  transmission  of  the  possession. 

In  Hinde  v.  Whitehouse,''^  where  a  sale  was  made  of  specific 
goods,  which,  at  common  law,  was  good  to  pass  the  property,  a 
delivery  of  a  sample  which  was  part  of  the  bulk  was  held  to 
satisfy  the  statute  as  regards  the  actual  receipt  required,  and  the 
sale  itself  having  been  an  assent  to  the  specific  goods  as  the  sub- 
ject of  the  sale,  the  part  delivery  was  held  sufficient  to  make  the 
purchaser  liable  for  the  goods  purchased,  even  though  they  were 
destroyed  by  fire  without  having  reached  his  actual  possession. 

But  in  Klinitz  v.  Surry ,2  where  it  was  held  that  a  delivery  of  a 
bulk  sample  was  an  actual  receipt  of  part  of  the  goods,  yet  where 
the  bulk  received  did  not  correspond  with  the  sample,  the  re- 
quirements of  the  statute  were  not  met,  there  having  been  no 
acceptance  of  goods  which  were  according  to  sample,  and,  there- 
fore, no  acceptance  of  the  goods  which  were  received,  as  they 
were  not  the  goods  which  had  been  assented  to  or  accepted. 

And  so,  in  Cooper  v.  Elston,*  though  there  was  a  sale  of  specific 
goods  by  sample,  which  amounted  to  an  acceptance  of  the  specific 
goods  which  were  sold  by  sample,  the  sale  was  -within  the  statute, 
as  there  was  but  a  delivery  of  a  sample,  which  was  not  a  delivery 
of  any  part  of  the  goods  sold.^ 

The  case  of  Hodgson  v.  Le  Bret^  was  one  where  it  was  held 
that  where  specific  goods  had  been  marked  by  the  purchaser  with 
her  name,  this  was  a  sufficient  actual  receipt  of  the  goods  marked 
by  her,  if  she  intended  thereby  to  appropriate  them  to  her  own  use  ; 
but  that  this  would  not  affect  other  goods  ordered  at  the  same 
time,  which  had  not  been  produced  to  her,  and  which  she  bad  not 
appropriated.  This  case  can  only  be  sustained  on  the  grounds 
that  the  purchase  of  the  goods  appropriated  was  an  entire  trans- 
action,'^ so  as  not  to  make  it  a  part  receipt  of  the  whole  of  the 

1  1  East,  192.  6  Gardner  v.  Grout,  2  C.  B.  N.  s.  340, 

2  7  East,  558.  is  to  tlie  same  effect. 
8  5  Esp.  267.  «  1  Camp.  23.".. 

4  7  T.  R.  14.  ■J  See  Price  v.  Lea,  1  B.  &  C.  156;  Elliott 


438  COMMENTARIES   ON   SALES.  [BOOK  IV. 

goods ;  and  that,  as  to  the  goods  marked,  they  were  thereafter  held 
by  the  vendor,  divested  of  his  lien,  as  tlie  vendee's  property.  Thus, 
as  in  Anderson  v.  Scott,i  where  the  plaintiff  had  selected  several 
pipes  of  wine,  and  bought  them  at  an  agreed  price,  thus  accepting 
and  assenting  to  them  as  the  very  subject  of  the  sale ;  the  spills  or 
pegs  by  which  the  wine  is  tested  were  then  cut  off ;  the  plaintiff's 
initials  were  marked  on  the  casks,  in  his  presence,  by  the  defend- 
ant's clerk,  and  the  plaintiff  took  the  gauge  numbers  of  the  casks. 
This  was  held  to  be  a  delivery,  and  hence  a  receipt,  of  the  wine.^ 

Elmore  v.  Stone  ^  is  another  case  of  constructive  delivery  at 
"common  law,  which  satisfies  the  actual  receipt  of  the  statute.  In 
this  case  there  was  a  clear  bargain  and  sale  of  specific  goods  at 
common  law,  which,  we  think,  where  that  form  of  action  at  com- 
mon law  can  be  sustained,  is  included  in  the  acceptance  of  the 
statute.  After  the  verbal  bargain  for  the  purchase  of  the  subject 
of  the  sale,  two  horses,  had  been  closed,  it  was  arranged  between 
the  vendor  and  vendee  that  the  vendor  should  keep  the  horses  at 
livery  for  the  purchaser.  The  latter  was  never  in  corporeal  pos- 
session of  the  horses.  In  -an  action  for  the  price  of  the  horses, 
the  court  held  that  there  had  been  a  constructive  delivery  of  the 
horses,  which  met  the  actual  receipt  required  by  the  statute.  The 
case  was  compared  to  others  of  symbolical  or  constructive  deliv- 
ery, where  goods  are  in  a  warehouse,  or  at  a  wharf,  and  the  key 
of  the  warehouse  is  delivered ;  or  a  note  is  given  addressed  to  the 
wharfinger,  who  in  consequence  makes  a  new  entry  of  the  goods 
in  the  name  of  the  vendee,  although  no  transfer  of  the  local  situa- 
tion or  actual  possession  takes  place.  But  in  the  case  of  Blenkin- 
sop  V.  Clayton,^  where  there  was  clear  evidence  of  acceptance  to 
satisfy  the  statute  ;  the  subject  of  the  sale,  a  horse,  was  never 
manually  or  constructively  out  of  the  possession  of  the  vendor,  so 
as  to  make  an  actual  receipt  within  the  statute.  But  the  court, 
while  distinguishing  the  case  from  Chaplin  v.  Rogers,^  as  there 
was  nothing  more  to  be  done  in  that  case  to  confer  a  possession 
of  the  haystack,  thought  it  a  question  that  should  be  submitted  to 
a  jury,  whether  the  defendant's  attempting  to  sell  the  horse  might 

V.  Thomas,  3  M.  &  W.  170  ;  Scott  v.  The  acts  of  the  vendor  and  vendee,  was  to  pass 

Eastern  Counties  Ry.  Co.,  12  M.  &  W.  33;  the  property  to  the  vendee,  so  that  the 

Bigg  V.  Whisking,  14  0.  B.  195  ;  Baldey  vendor  would  simply  hold  the  wine,  de- 

V.   Parker,  2  B.  &  C.   37  ;  Thompson  v.  prived  of  his  lien,  as  the  bailee  for  the 

Maceroni,  3  B.  &C.  1;  Rohde  v.  Thwaites,  vendor,  then  there  would  be  a  perfectly 

6  B.  &  C.  388.  good  constructive  delivery  and  actual  i-e- 

1  1  Camp.  235,  n.  ceipt.     But  then  the  action  was  miscon- 

2  The  correctness  of  the  decision  in  this  ceived,  and  should  have  been  in  trover  for 
case  has  been  much  questioned.  See  per  the  wrongful  retention  of  the  wine  instead 
Best,  C.  J.,  in  Proctor  v.  Jones,  2  C.  &  P.  of  in  assumpsit  for  its  non-delivery. 

532,  534.     But  we  think  that  if  the  inten-  s  1  Taunt.  458. 

tion  of  the  parties  to  the  sale  (which  would  *  7  Taunt.  507. 

be  a  question  for  the  jury),  by  the  mutual  ^  1  East,  192. 


PART   VII.]  THE    ACTUAL   RECEIPT.  439 

not  have  amounted  to  an  actual  receipt  to  satisfy  the  statute.  As 
however,  it  seems  quite  clear  in  this  case  that  the  vendor  had  not 
parted  with  his  lien,  as  it  was  held  he  had  done  in  Elmore  v. 
Stone,  ^  and  as  it  is  clear  that  the  vendee  could  not  have  main- 
tained trover  against  the  vendor  for  the  horse,  as  he  clearly  could 
have  done  in  Elmore  v.  Stone,  for  the  horses  there,  we  think  that, 
even  had  the  jury  found  that  there  had  been  a  delivery  of  the 
horse,  their  verdict  could  not  have  been  sustained.  Wood,  B.,  was 
of  that  opinion,  and  the  court  (Gibbs,  C.  J.,  and  Dallas,  J.)  were, 
evidently,  very  much  of  the  same  opinion. 

In  Howe  v.  Palmer,^  as  we  have  seen  in  the  previous  Part,  tha 
term  "  accept"  is  inextricably  mixed  with  the  "  actual  receipt"  of 
the  statute.  The  case,  though,  clearly  holds,  that,  where  a  vendee 
had  verbally  agreed  at  a  public  market  with  the  agent  of  the 
vendor  to  purchase  twelve  bushels  of  tares  (then  in  vendor's  pos- 
session, constituting  part  of  a  larger  quantity  in  bulk),  to  remain 
in  vendor's  possession  till  called  for,  and  the  agent,  on  his  return 
home,  measured  the  twelve  bushels,  and  set  them  apart  for  the 
vendor,  this  did  not  constitute  a  constructive  receipt.  The  ven- 
dor here  held  the  tares,  not  as  bailee  for  the  vendee,  but  as  the 
unpaid  vendor,  with  his  lien  attaching,  and  without  the  right  on 
his  part  to  maintain  an  action  for  goods  sold  and  delivered,  nor 
on  the  part  of  the  vendee  to  maintain  trover  for  the  goods.  The 
case  was  essentially  different  from  Elmore  v.  Stone,^  which  was 
relied  on.  So,  in  Tempest  v.  Fitzgerald,*  where  there  was  a  clear 
acceptance  of  the  horse  that  was  there  purchased,  but  the  sale 
was  made  for  ready  money,  and  the  horse  was  left  in  the  posses- 
sion of  the  vendor  unpaid  for,  it  was  held  that  there  had  been  no 
actual  receipt  of  the  horse  by  the  vendee ;  the  horse  remaining  in 
the  possession  of  the  vendor  with  the  lien  for  the  payment  still 
attaching ;  notwithstanding  acts  by  the  vendee  which  clearly 
showed  an  acceptance  of  the  horse,  but  which  did  not  show  the 
ultimate  possession  of  the  horse  to  be  in  him. 

On  a  sale  of  goods  for  cash  at  common  law  the  vendor  has  a  lien 
for  the  price  so  long  as  he  retains  possession  as  vendor,  or  owner, 
of  the  goods.  The  Statute  of  Frauds  does  not  alter  the  law  in  this 
respect.  The  part  payment  of  the  goods  purchased,  or  the  note 
or  memorandum  in  writing,  gives  the  vendee  no  other  or  greater 
right  in  the  goods  than  he  would  have  had  before  the  passage 
of  the  statute.  Neither  then  does  the  acceptance  by  the  vendee 
"  of  a  part  of  the  goods  sold  and  the  actual  receipt  of  the  same." 
This  is,  as  is  the  part  payment,  or  the  memorandum  in  writing, 

1  1  Taunt.  458.  »  1  Taunt.  458. 

2  3  B.  &  AM.  321.  <  3  P..  &  Aid.  680. 


440  COMMENTARIES   ON    SALES.  [BOOK   IV. 

but  the  statutory  evidence  to  prove  the  contract  of  sale.  While 
the  remainder  of  the  goods  remains  in  the  poss^ession  of  the  ven- 
dor where  the  sale  is  not  on  credit,  with  the  possession  is  retained 
the  lien,  precisely  as  in  the  cases  where  the  contract  of  sale  is 
otherwise  proved. 

If,  as  in  Elmore  v.  Stone,^  there  has  been  such  a  dealing,  by 
both  of  the  parties,  with  tlie  goods,  as  amounts  to  a  constructive 
delivery  of  all  the  goods  (there  having  also  been  the  acceptance 
of  them  by  the  vendee),  so  that,  even  though  the  possession  re- 
main with  the  vendor,  but  in  the  capacity  of  a  bailee  or  custodian 
for  the  vendee,  and  not  as  vendor  or  owner,  then  the  possession  is 
really  in  the  vendee,  and,  with  the  possession  gone,  the  lien  is 
gone.  So,  on  principle,  where  there  have  been  an  acceptance  by. 
the  vendee  of  the  whole  of  the  goods,  and  an  actual  receipt  of 
them,  it  follows,  that,  the  property  and  possession  being  both  in 
him,  not  only  is  the  lien  and  the  right  of  stoppage  in  transitu 
gone,  but  the  right,  as  well,  of  rejection  of  the  whole  or  of  any 
part  of  the  goods.  The  contract  then  is  absolutely  and  conclu- 
sively executed,  outside  of  the  question  of  fraud,  and  outside  of 
any  remedy  he  may  have  on  any  express  or  implied  warranty  in  the 
contract.  It  follows,  then,  that  for  any  unlawful  taking  or  reten- 
tion of  the  goods  trover  would  lie  by  the  vendee,  as  in  any  other 
case  of  the  unlawful  taking  or  detention  of  his  goods,  and  the 
whole  risk  of  loss  of  the  goods  and  insurable  interest  would  be  in 
him.  And,  on  the  other  hand,  where  there  have  been  the  accept- 
ance and  the  actual  receipt  of  the  whole  of  the  goods  by  the  ven- 
dee, an  action  for  the  price  will  lie  against  him  by  the  vendor,  as 
for  goods  sold  and  delivered. 

But  while  this  is  the  plain  logical  outcome  of  the  statute,  there  are 
cases,  where,  while  there  has  been  a  clear  acceptance  of  the  goods 
as  the  subject  of  the  purchase  and  sale,  there  has  been  no  actual 
receipt  or  actual  delivery  of  the  goods,  either  in  the  sense  of  a  man- 
ual, symbolical,  or  constructive  delivery  or  receipt.  Yet,  notwith- 
standing this,  in  such  cases,  in  utter  violation  of  the  statute,  it  has 
been  held,  that  the  declarations  of  the  vendee,  to  which  the  vendor 
was  no  party,  constituted  an  actual  receipt  by  the  vendee  of  goods 
which  had  never  passed  out  of  the  possession  of  the  vendor ;  on 
which  he  had  never  relinquished  his  lien  for  the  price,  and  for  which, 
as  against  him,  clearly,  the  vendee  could  not  maintain  trover. 

Such  cases  are  represented  by  the  nisi  prius  case  of  Baines  v. 
Jevons,^  where  there  was  a  verbal  sale  of  a  fire-engine  for  <£25, 
but  not  a  tittle  of  evidence  to  show  the  transmission  of  the  posses- 
sion of  the  engine  from  the  vendor  to  the  vendee.     The  evidence 

1  1  Taunt.  458.  2  7  c.  &  P.  288. 


PART    VII.]  THE    ACTUAL    RECEIPT.  441 

clearly  shows  that  there  was  an  acceptance  of  it,  but  no  manual, 
symbolical,  or  constructive  transfer  of  the  possession,  which  re- 
mained with  the  vendor  with  his  lien  attaching  to  the  engine. 
The  question  really,  as  to  the  actual  receipt,  was  not  named  in  the 
case,  except  in  the  pleadings,  Alderson,  B.,  merely  leaving  the 
question  to  the  jury  whether  the  acts  and  declaratious  of  the  ven- 
dee showed  that  he  had  "  accepted  "  the  fire-engine.  Unquestion- 
ably he  had  accepted  it,  within  the  meaning  of  the  statute,  but 
there  was  no  evidence  whatever  that  he  had  ever  received,  or, 
correlatively,  that  the  vendor  had  delivered  it. 

An  important  distinction  is  suggested  by  the  badly  decided  case, 
on  the  question  of  actual  receipt,  of  Baines  v.  Jevons,^  thus :  The 
acceptance,  which  is  an  act  of  the  mind  on  the  part  of  the  vendee, 
and  on  his  part  alone,  and  which  may  be  express  or  implied,  may 
be  unquestionably  implied  by  any  of  his  acts  or  declarations 
which  manifest  his  acceptance  of  the  very  subject  of  the  sale.  An 
actual  receipt,  on  the  contrary,  like  the  part  payment  of  the  stat- 
ute, cannot  be  the  act  of  one  alone  of  the  parties  to  the  contract. 
As  the  part  payment  of  the  purchase-money  must  be  the  mutual 
act  of  both  parties,  the  vendee  to  pay,  the  vendor  to  receive  the 
payment ;  so  the  actual  receipt  of  the  statute  requires  the  joint 
action  of  both  vendor  and  vendee,  the  vendor  to  deliver  and  the 
vendee  to  receive  delivery  of  the  goods  purchased  or  of  some 
part  thereof.  This,  as  a  fair  deduction  from  the  cases  themselves, 
and  from  the  manner  in  which  they  are  treated  by  all  the  text- 
writers,  is  an  infallible  test  in  all  the  cases  that  are  represented 
by  Baines  v.  Jevons;^  Anderson  v.  Scott  ;^  Elmore  v.  Stone;* 
Chaplain  v.  Rogers;^  Tempest  v.  Fitzgerald,*^  and  kindred  cases. 

Unless,  as  such  deduction  from  those  cases  (where  there  is  also 
the  statutory  acceptance  of  the  whole  of  the  goods),  there  has  been 
an  actual  transmission  of  the  possession  —  manual,  constructive, 
or  symbolical  —  to  which  both  vendor  and  vendee  have  been  par- 
ties, so  that  as  against  one  an  action  of  trover  will  lie  for  the 
wrongful  withholding  of  the  property,  —  the  ownership,  right  of 
possession,  and  lien  of  the  vendor  being  gone  ;  and  an  action  for 
the  price  as  for  goods  sold  and  delivered  lying  against  the  other ; 
the  risk  of  loss,  and  the  whole  insurable  interest  being  in  him, — 
then  the  statute  is  not  satisfied,  and  there  has  not  been  the  actual 
receipt  which  is  required.'^ 

1  7  r'.  &  p.  288.  sideration  of  the  doctrine  of  estoppel  as 
"  Ibid.  applicable  to  this  class  of  cases  ;   a  doc- 

2  1  Camp.  23.'),  n.  trine  neither  relied  on  in  these  cases,  nor 
*  1  Taunt.  4.58.  •  adverted  to  by  any  of  the  courts  or  text- 
^  1  East,  192.  writers  by  whom  they  have  been  cited  or 
f'  3  I>.  &  Aid.  680.  discussed,  either  in  Kn<,dand  or  in  this 
'  This  is  entirely  aside  from  the  con-      country.     We  will  consider   this  inipor- 


442  COMMENTARIES   ON   SALES.  [BOOK   IV. 

There  is  one  apparent,  but  not  real  exception,  to  this  rule. 
Where  goods  which  have  been  accepted  have  been  placed  by  the 
vendor  in  the  possession  of  a  carrier,  and  the  vendor  has  assigned 
the  bill  of  lading  to  the  vendee ;  the  vendee,  notwithstanding  the 
continuance  of  the  vendor's  lien  in  the  right  of  stoppage  in  tran- 
situ, may  sell  the  goods,  assign  the  bill  of  lading,  and  pass  the 
property  in  the  goods  to  a  third  party.  But  this  is  simply  because, 
by  the  assignment  of  the  bill  of  lading,  the  vendor  enables  the 
vendee,  on  the  one  hand,  to  extinguish  the  lien,  amounting  to  a 
constructive  taking  possession  of  the  goods  by  the  vendee's  as- 
signee, with,  in  effect,  the  assent  of  the  vendor ;  and,  on  the  other 
hand,  also  by  the  act  of  the  vendor,  enabling  the  vendee,  by  virtue 
of  the  assignment  of  the  bill  of  lading,  himself  to  take  actual  pos- 
session of  the  goods  at  the  terminus  of  the  transitus.  So  that  this 
case,  too,  is  quite  within  the  rule. 

The  case  of  Parker  v.  Palmer  ^  was  one  where  there  was  a  deal- 
ing with  the  goods,  after  a  sale  by  sample,  the  bulk  not  corres- 
ponding with  the  sample.  Although  the  acts  of  the  vendee 
amounted  to  an  implied  acceptance  of  the  goods,  tlie  lien  for  the 
payment  still  continuing  to  attach,  there  was  no  actual  receipt 
by  him.  As,  however,  there  was  a  sufficient  memorandum  in 
writing  of  the  contract,  an  action  for  the  price  was  sustained. 
The  action,  however,  was  for  goods  bargained  and  sold,  and  not 
for  goods  sold  and  delivered. 

In  Hanson  v.  Armitage^  the  question  reserved  at  the  trial  was 
whether  "  the  delivery  of  the  goods,  and  the  acceptance  [?  i^eceipt] 
of  them  by  the  wharfinger, /or  the  purpose  of  trammitting  them  by 
the  usual  conveyance,  was  to  be  deemed  an  acceptance  of  them  by 
the  buyer."  This,  as  we  have  seen,^  is  usually  relied  on  to  show 
that  the  carrier  is  the  agent  of  the  vendee  to  receive,  but  not  to 
accept.  The  case  really  shows  nothing  of  the  kind.  The  term 
"  acceptance  "  is  used  in  an  uncertain  way  ;  but  all  the  case  really 
holds  is  that  the  delivery  to  the  warehouseman  did  not  constitute 
the  acceptance  and  actual  receipt  of  the  vendee.  Whether  the  re- 
ceipt by  a  carrier  or  warehouseman  is  the  actual  receipt  —  not 
the  acceptance  —  of  the  vendee  depends  upon  whether  such  ware- 
houseman or  carrier  is  so  far  the  servant  or  agent  of  the  vendee, 
that  his  receipt  is  the  ultimate  receipt  of  the  vendee,  terminating 
the  transitus  of  the  goods  as  between  the  vendor  and  vendee.  If, 
as  the  case,  aside  from  the  unreliable  use  by  the  court  of  the  term 
"accept,"  (using  it,  as  they  do,  in  a  double  sense),  would  seem 
to  imply,  the  wharfinger  was  simply  to  transmit  the  goods  to 

tant  point,  in  our  discussion  of  "estop-  "^  5\i.  &,  Aid.  557. 

pel,"  in  a  later  volume  of  this  work.  ^  Supra,  p.  331,  n.  3. 

1  4  B.  &  Aid.  387. 


PART   VII.]  THE   ACTUAL   RECEIPT.  443 

their  ultimate  destination,  so  that  the  stoppage  in  transitu  would 
continue  until  they  reached  the  possession  of  the  purchaser,  then 
the  delivery  to  the  forwarder  would  not  be  an  actual  receipt,  much 
less  an  acceptance  by  the  vendee. 

Although  it  is  stated  in  Carter  v.  Toussaint^  that  "  there  was 
no  accoptance  of  the  horse,"  which  was  the  subject  of  the  sale, 
within  the  exception  to  the  seventeenth  section  of  the  statute,  the 
"  acceptance  "  was  undoubted.  As  however,  the  horse,  after  the 
sale,  continued  in  the  vendors'  possession,  with  the  lien  attached, 
so  that,  as  Abbott,  C.  J.,  said,  "  the  plaintiffs'  character  continued 
unchanged  from  first  to  last,"  there  was  no  actual  receipt  by  the 
vendee  of  the  horse.  This,  evidently,  notwithstanding  the  mis- 
use by  Abbott,  C.  J.,  of  the  term  "  acceptance,"  is  all  he  means 
when  he  says,  "  There  was  then  no  sufficient  acceptance  [receipt] 
to  take  the  case  out  of  the  Statute  of  Frauds."  So,  Bayley,  J.,  was 
really  but  dealing  with  the  question  of  the  actual  receipt,  when  he 
said,  "  There  can  be  no  acceptance  or  actual  receipt,  by  the  buyer, 
unless  there  be  a  change  of  possession  ;  and  unless  the  seller 
devests  himself  of  the  possession  of  the  goods,  though  but  for  a 
moment,  the  property  remains  in  him."  This  is  entirely  accurate, 
as  shown  by  the  general  trend  of  the  cases,  as  to  the  actual  re- 
ceipt. It  is  grossly  inaccurate  as  to  the  acceptance.  The  whole 
question  involved  in  the  case  was  whether  there  had  been  an 
actual  receipt  by  the  vendee  of  the  specific  horse  which  he  had 
bought  (so  thereby  assenting  to  and  "  accepting  "  the  horse  as  the 
very  subject  of  the  sale),  and  it  was  correctly  held  that,  as  the  ven- 
dors had  never,  even  for  a  moment,  parted  with  their  possession  of 
the  horse,  nor  detached  their  lien  on  it  for  the  price,  the  vendee 
had  never  been  in  the  actual  receipt  of  it. 

"Where  there  has  been  an  actual  receipt  of  goods,  but  there  has 
been  only  an  acceptance  of  some  part  of  them, —  the  transaction 
not  being  entire, — there,  notwithstanding  the  actual  receipt  of  the 
whole,  the  unaccepted  part  of  the  goods  may  be  rejected.^  As, 
also,  where  there  is  an  actual  receipt  of  the  whole  of  them,  but  no 
acceptance  of  any  of  them,  the  whole  can  be  returned.^  And  when 
there  has  been  an  acceptance  of  the  whole  of  the  goods,  as  there 
must  be  also  their  actual  receipt,  or  the  receipt  of  some  part  of 
them,  the  vendee,  in  the  absence  of  the  receipt  of  a  part,  may  re- 
fuse to  receive  the  whole  of  them.* 

1  .5  P..  &  Aid.  855.  *  Bal.loy  v.  Parker,  2  B.  &  C.  37.    "  Ac- 

2  Price  V.  Lea,  1  B.  &  C.  156.  And  ceptance  "  in  this  case  is,  as  is  so  usual  ia 
see  Hodgson  v.  Le  Brc-t,  1  Camp.  233  ;  the  English  cases,  improiierly  used  where 
Elliott  V.  Thomas,  3  M.  &  W.  170";  Scott  but  the  actual  receijit  of  the  statute  is  in- 
r.  The  Eastern  Countiis  Hy.  Co.,  12  M.  &  tended.  In  this  case  the  specific  goods 
W.  33;  Bigg  v.  Whisking,  14  C.  B.  195.  were  selected  and  accepted  liy  the  vendee, 

3  Kent  V.  Huskinson,  2  B.  &  P.  233.  as  in  Cusack  i;.  Robinson,  1  B,  &  S.  299, 


444 


COMMENTARIES   ON   SALES. 


[book  IV. 


In  Phillips  V.  Bistolli,i  the  effect  of  the  finding  of  the  jury  was 
that  there  had  been  an  acceptance  of  the  goods  sold,  which  was  in 
effect,  as  well  as  in  terms,  the  only  question  which  seems  to  have 
been  submitted  to  them.  Specific  goods  were  sold  at  auction,  and 
on  their  being  knocked  down  to  the  defendant,  were  handed  to 
him.  A  few  minutes  after,  he  claimed  that  he  had  been  mistaken 
in  the  price.  The  jury  found  that  he  had  not  mistaken  the  price ; 
therefore  that  the  minds  of  the  parties  were  ad  idem,  and  that  the 
vendee  had  "  accepted "  the  goods.  A  rule  nisi  for  a  new  trial 
was  granted  on  the  ground  "that  there  was  no  acceptance  [re- 
ceipt], inasmuch  as  the  plaintiff  had  a  lien  upon  the  goods  until 
the  price  was  paid,  and  he  could  not  therefore  have  intended  to 
part  with  the  possession  of  the  goods."  The  court,  in  making  the 
rule  absolute,  held,  that  it  was  a  question  for  the  jury,  whether, 
binder  the  facts,  there  had  been  such  a  parting  with  the  possession 
by  the  vendor,  and  receipt  by  the  vendee,  as  owner,  as  destroyed 
the  vendor's  lien ;  and,  therefore,  in  effect,  whether,  in  addition 
to  the  acceptance  of  the  goods  as  the  subject  of  the  sale  under 
the  particular  contract,  as  the  jury  had  found,  there  was  also  the 
actual  receipt  required  by  the  statute.^ 


but  they  were  not  delivered  to  him,  and 
he  refused  to  receive  them.  Abbott, 
C.  J.,  said  :  "  The  words  of  the  exception 
are  peculiar,  '  except  the  buyer  shall  ac- 
cept part  of  the  goods  so  sold,  and  actu- 
ally receive  the  same.'  It  would  be  diffi- 
cult to  find  words  more  distinctly  denoting 
an  actual  transfer  of  the  article  from  the 
seller,  and  an  actual  taking  possession  of 
it  by  the  buyer.  If  we  held  that  such  a 
transfer  and  acceptance  [receipt]  were  com- 
plete in  this  case,  it  would  seem  to  follow 
as  a  necessary  consequence  that  the  vendee 
might  maintain  trover  without  paying  for 
the  goods,  and  leave  the  vendor  to  this 
action  for  the  price."  And  Holroyd,  J.  : 
"  Upon  a  sale  of  specific  goods  for  a  spe- 
cific price  [exactly  what  constitutes  an 
acceptance  or  assent  to  the  goods  as  the 
subject  of  the  sale  under  the  contract],  by 
parting  with  the  possession  the  seller  parts 
with  his  lien.  The  statute  contemplates 
such  a  parting  with  the  possession  ;  and, 
therefore,  as  long  as  the  seller  preserves 
his  control  over  the  goods,  so  as  to  retain 
his  lien,  he  prevents  the  vendee  from  ac- 
cepting and  receiving  them  as  his  own, 
within  the  meaning  of  the  statute."  All 
that  is  meant  by  this,  notwithstanding  the 
peculiar  language  used,  is  that  where  there 
has  been  an  acceptance  of  specific  goods 
for  an  agreed  price,  so  that,  but  for  the 
statute,  the  property,  subject  to  the  ven- 
dor's lien  for  the  price,  would  be  in  the 
vendee,  there  must  also,  to  satisfy  the  re- 


quirements of  the  statute,  be  a  transmis- 
sion of  the  possession  in  some  part,  or  the 
whole  of  the  goods,  to  the  vendee,  so  that, 
where  the  transmission  is  of  the  possession 
of  the  whole  of  the  goods,  the  vendor's 
lien  is  gone. 

1  2  B.  &C.  511. 

^  The  case  of  Phillips  v.  BistoUi,  2  B. 
&C.  511,  shows  the  inextricable  confusion 
of  the  English  judges  on  the  questions  of 
the  acceptance  and  the  actual  receipt  of 
the  statute.  The  term  "acceptance"  all 
through  the  judgment  is  simply  used  as 
though  it  meant  actual  receipt,  or  as 
though  the  statute  had  but  the  one  word 
"accept,"  or  the  one  word  "receive,"  and 
did  not  contain  the  words  accept  aiid  ac- 
tually receive.  The  language  of  the  judg- 
ment is:  "  In  order  to  satisfy  the  statute 
there  must  be  a  delivery  of  the  goods  by 
the  vendor,  with  an  intention  of  vesting 
the  right  of  possession  in  the  vendee  ;  and 
there  must  be  an  actual  acceptance  by  the 
latter,  with  an  intention  of  taking  to  the 
possession  as  owner.  It  lies  upon  the 
plaintiS"  in  this  case  to  make  out  that 
there  was  such  delivery  and  accejitance. 
Now,  here  by  the  printed  conditions  of 
sale  a  deposit  of  thirty  per  cent,  was  to  be 
paid  upon  the  party  being  declared  the 
highest  bidder,  and  the  residue  of  the  pur- 
chase-money when  the  goods  were  removed; 
and  it  is  not  to  be  presumed  that  the  ven- 
dor intended,  contrary  to  that  condition, 
to  part  with  the  right  of  possession  until 


PART   VII.] 


THE   ACTUAL   RECEIPT. 


445 


So,  in  Bentall  v.  Brown,^  where  there  was  a  verbal  sale  of  spe- 
cific goods,  at  ^13  14s.,  which  were  at  the  London  docks,  and  for 
which  a  delivery  order  was  sent  to  the  vendee,  the  real  holding  in 
the  case  is  (although  as  usual  the  term  "  acceptance  "  instead  of 
"receipt"  is  used),  that  there  could  be  no  actual  receipt  of  the 
goods  until  the  dock  company  "  accepted  ^  the  order  for  delivery, 
and  thereby  asseyited  to  hold  the  goods  as  the  agent  of  the  vendee."^ 
And  in  Nicholle  v.  Plume,*  where  specific  goods  were  bought  by 


the  deposit  or  price  was  paid.  There  was, 
therefore,  very  slight  evidence  to  show  that 
the  plaintiff  intended  to  part  with  all  con- 
trol over  the  goods  when  he  delivered  them. 
Then  was  there  any  accei)tance  by  the  de- 
fendant as  owner?  It  appears  that  a  very 
short  interval  elapsed  after  the  lot  was 
knocked  down  before  the  defendant  ob- 
jected that  he  had  been  mistaken  in  the 
price.  Unless,  therefore,  the  retaining  of 
them  for  the  three  or  four  minutes  that  in- 
tervened was  evidence  of  an  actual  accept- 
ance by  him  as  owner,  it  is  clear  that  there 
was  not  any  acceptance  afterwards.  That, 
at  all  events,  was  very  slight  evidence  of 
an  acceptance  by  the  defendant  as  owner  ; 
and  it  ought,  at  least,  under  all  the  cir- 
cumstances, to  be  submitted  as  a  question 
of  fact  to  the  jury,  whether  there  was  a 
delivery  by  the  vendor  and  an  actual  ac- 
ceptance by  the  vendee,  intended  by  both 
parties  to  have  the  effect  of  transferring 
the  right  of  possession  from  the  one  to  the 
other."  If  throughout  this  the  word  "re- 
ceipt" be  substituted  for  the  word  "accept- 
ance," it  will,  on  the  facts  in  the  case,  be 
found  an  accurate  statement  of  the  law. 

There  were  an  acceptance  and  an  actual 
receipt  of  ])art  of  the  goods  in  Thompson 
V.  Maceroni,  3  B.  &  C.  1,  which  was  an  ac- 
tion for  goods  sold  and  delivered.  As  the 
mass  of  the  goods,  however,  remained  in 
the  vendor's  possession,  the  court  held 
that  the  plaintiff  could  not  recover  on  the 
count  for  goods  sold  and  delivered.  The 
court  also  say  "that  there  was  no  actual 
acceptance  [receipt]  of  these  goods  by  the 
buyer  within  the  17th  section  of  the  stat- 
ute of  frauds."  What  the}"-  seem  to  mean, 
and  which  would  be  jierfectly  correct,  is, 
that  there  having  been  no  actual  receifit  of 
the  goods,  a  count  for  goods  sold  and  de- 
livered wouhl  not  lie.  In  the  case  as  re- 
ported in  4  D.  &  Ry.  619,  Bayley,  J.,  says : 
"With  respect  to  the  statute  of  frauds,  it 
is  plain  that  there  was  no  delivery  and  ac- 
ceptance [receipt]  here  within  the  meaning 
of  the  17th  section,  for  the  vendee  got  pos- 
.session  of  a  very  small  yiart  only,  and  was 
not  ]ieriiiitte<l,  nor  had  any  right,  to  take 
the  rest  until  he  paid  or  gave  security  for  the 
value  of  ihc  whole."  This  would  Ije  quite 
a  good  reason  why  an  action  for  goods  sold 


and  delivered  would  not  lie,  but  it  would  be 
no  reason  why,  where  there  were  both  the 
acceptance  and  the  actual  receipt  of  part 
of  the  goods,  it  would  not  effectually  take 
the  case  out  of  the  statute,  even  though 
the  vendor's  lien  for  the  price  continued 
to  attach  to  the  undelivered  residue.  The 
acceptance  and  part  receipt  would  as  effec- 
tually take  the  case  out  of  the  statute  as  a 
memorandum  in  writing  or  a  part  payment 
would  do  ;  but  in  neither  of  these  cases 
would  a  count  for  goods  sold  and  delivered 
lie.  It  is,  as  we  fully  pointed  out  in  the 
last  preceding  Part,  where  it  is  claimed 
that  there  have  been  an  acceptance  and 
actual  receipt  of  the  whole  of  the  goods, 
that  the  tests  as  to  the  continuance  of  the 
lien  (where  the  sale  is  not  on  credit), 
and  the  relative  rights  of  maintaining 
goods  sold  and  delivered  and  trover,  show 
whether  or  not  the  case  has  been  taken 
out  of  the  statute.  In  Elliott  v.  Thomas, 
3  M.  &  W.  170,  177,  Parke,  B.,  although 
himself  there  improperly  using  "  accept- 
ing" as  synonymous  with  "  receipt,"  points 
out  that  the  decision  in  Thompson  v.  Mac- 
eroni, 3  B.  &  C.  1;  4  D.  &  Ry.  619,  turned 
entirely  on  the  form  of  action.  Had  the 
count  there  been  for  goods  bargained  and 
sold  it  would  have  been  sustained,  as  it 
would  if  the  case  had  been  taken  out  of 
the  statute  by  a  part  payment. 

1  3  B.  &  C.  423. 

2  Here  is  another  instance  where  the 
term  "  accept  "  is  not  used  in  the  sense  of 
receive,  but  in  that  of  assent. 

3  The  court  said  :  "  They  held  it  origi- 
nally as  the  agents  of  the  vendors  ;  and  as 
lonsr  as  they  continued  so  to  hold  it  the 
pro])erty  was  unchanged.  It  has  been 
said  that  the  London  Dock  Company  were 
bound  hy  law,  when  rcquiied,  to  hold  the 
goods  on  account  of  the  vendee.  That 
may  be  true,  and  they  might  rcndei'  them- 
selves liable  to  an  action  for  refusing  so 
to  do  ;  but  if  they  did  wrongfully  refuse 
to  transfer  the  goods  to  the  vemlee,  it  is 
clear  that  there  could  not  be  any  actual 
acceptance  [recei[it  !]  of  them  by  liim  until 
he  actually  took  possession  of  them."  The 
word  acceptance  being  changed  to  receipt, 
this  is  clear  law. 

*  1  C.  &  P.  272. 


446  COMMENTARIES   ON   SALES.  [BOOK   IV. 

verbal  contract,  for  above  £10  in  value,  and  were  sent  to  the  pur- 
chaser, who  refused  to  receive  them,  but  caused  them  to  be  lodged 
in  a  warehouse  near  his  premises,  but  not  belonging  to  him,  and 
neither  returning  the  goods  to  the  seller,  nor  notifying  him  of  his 
refusal  to  receive  the  goods,  the  court  held  that  the  statute  was 
not  satisfied,  as  the  actual  receipt  must  be  unequivocal.  As  usual, 
they  employ  the  term  "  acceptance,"  but  obviously  mean  receipt. 

Again,  in  Proctor  v.  Jones,i  there  was  the  acceptance  required 
by  the  statute.  In  this  case,  as  is  rare,  it  was  correctly  contended 
that  there  had  been  no  actual  receipt  of  the  goods.  In  this  case 
the  accepted  and  assented-to  goods,  as  the  subject  of  the  contract, 
were  marked  with  the  initials  of  the  purchaser,  and  the  facts  as 
to  acceptance  were  not  dissimilar  from  those  in  the  later  and  im- 
portant case  on  the  subject,  of  Cusack  v.  Robinson.^  The  court 
held  that  there  had  been  no  actual  receipt  to  take  the  case  out  of 
the  statute.^ 

In  Smith  v.  Surman*  there  was  no  actual  transfer  of  the  posses- 
sion of  the  goods,  manual,  constructive,  or  symbolical,  to  the  ven- 
dee. His  offer  to  resell  a  portion  of  the  goods  was  relied  on  to 
take  the  case  out  of  the  statute ;  but  however  much  his  acts  or 
declarations  may  tend  to  show  that  he  has,  as  an  act  of  the  mind, 
accepted  the  goods,  when,  as  in  Smith  v.  Surman,  the  evidence 
shows  that  there  has  been  no  receipt  by  the  vendee  of  any  part  of 
the  goods,  but  that  the  vendor's  lien  attaches  to  the  whole  of 
them,  his  acts  or  declarations  will  no  more  constitute  an  actual 
receipt  under  the  statute,  to  supply  the  evidence  required  by  the 
statute,  tlian  they  will  to  show  that  there  has  been  a  note  or  mera- 

1  2  C.  &  P.  532.  had  made  a  transfer  in  the  dock-books, 

2  1  B.  &  S.  299,  that  would,  iu  my  opinion,  have  been  a 
**  In  this  case,  Best,  C.  J.,  although     symbolical  delivery."     It  will  be  noticed 

starting   to    discuss    the   question   as    to  here  that    Best,    C.  J.,  states  that  there 

whether   the   vendee    had    "actually   re-  was   no   stipulation   as  to  payment  at  a 

ceived  "  the  goods  (italicizing  the  actually  future    time  ;   still   he   shows,  almost  in 

received),  falls  into  the  usual  error  of  em-  the  next  sentence,  that  there  was.     But 

ploying  acceptance  as  a  synonym  for  the  his  more  serious  mistake  is,  where  he  says, 

actual  receipt  of  the   statute.     He  says:  as  he  does,  that   "it  is  the  intention  of 

"It  cannot    be  said  in  the  present  case,  the  statute  that  there  should  be  as  com- 

that  the  defendant  actually  received  the  plete  a  delivery  as  can  be  according  to  the 

goods.     Could  the  vendee  maintain  trover  nature  of  the  article."     And  j-et  he  shows 

if  the  goods   were   not   delivered  ?     Cer-  that  a  symbolical  delivery  here  was  good 

tainly,  he  could  not,  for  the  seller  would  of  articles  which,  according  to  their  na- 

have  a  lien  on  them  for  the  price,  as  there  ture,  were  susceptible  of  a  manual  delivery, 

was  no   stipulation   as   to  payment   at  a  And   numerous   well-decided   cases   show 

future  time.     But  not  only  was  there  no  that  the  constructive  receipt  is  sufficient, 

delivery,  but  there  was  no  complete  con-  under  the   statute,    of    such   subjects  as 

tract  at  the  time  of  the  making  ;  for  at  that  horses,    carriages,    pipes    of    wine,    etc., 

time  the  time  of  payment  was  not  agreed  which   are  capable  of  a  manual  delivery, 

upon  ;    but  it  was  settled  in  a  conversa-  or   a    literal,    corporeal    transmission    of 

tion  afterwards.     If  there  was  no  complete  possession. 

contract  at  the  time  of  the  making,  then  *  9  B.  &  C.  561,  fully  examined  by  us, 

the  marking  cannot  be  an  acceptance  [re-  supra,  338  et  seq. 
ceipt]  under  the  statute.     If  the  plaintiff 


PART    VII.]  THE   ACTUAL   RECEIPT.  447 

orandura  of  the  contract  in  writing,  or  of  the  payment  of  earnest 
or  a  part  payment,  when,  in  fact,  there  has  been  no  such  memor- 
andum and  no  such  part  payment. ^ 

Maberley  v.  Sheppard,^  which  we  have  fully  examined  ante,  340, 
stripped  of  its  errors,  in  mistaking  the  fact  that  there  was  "  no 
proof  of  actual  delivery,"  as  showing  that,  therefore,  there  was 
no  "  acceptance  under  the  Statute  of  Frauds,"  really  holds  that 
neither  an  action  for  goods  sold  and  delivered  will  lie,  nor  will  a 
verbal  contract  for  goods  over  the  value  of  XIO  be  taken  out  of 
the  statute,  where  the  vendor  continues  to  hold  the  goods  with  his 
lien  attaching,  even  though  some  of  the  vendee's  materials  may 
be  used  in  the  making  of  the  goods  ;  there  having  been  no  deliv- 
ery of  the  goods  by  the  vendor,  with  an  intention  of  vesting  the 
possession  in  the  vendee ;  and  no  actual  receipt  by  the  vendee, 
with  an  intention  of  taking  possession  as  owner. 

There  was,  apparently,  an  actual  receipt  of  the  goods  in  Acebal 
V.  Levy,^  by  the  vendee,  as  the  goods  seem  to  have  been  delivered 
to  the  vendee's  own  ship,  at  the  foreign  port,  so  that  it  would 
seem,  in  this  case,  that  even  the  stoppage  in  transitu  was  gone, 
although  the  case  is  not  altogether  clear  on  this  point ;  but,  as- 
suming that  it  was  so,  before  the  arrival  of  the  goods  at  the  home 
port,  and  while,  it  was  held,  the  vendee  was  not  precluded  from 
objecting  to  the  quality  of  the  goods,  he  refused  to  accept  them. 
So,  even  though  the  receipt  was  good,  the  want  of  the  acceptance  of 
the  goods  still  left  the  exception  of  the  statute  unsatisfied.  The 
action,  too,  was  for  not  "accepting"  (used  here  in  the  sense  of 
refusing  to  receive)  the  goods ;  whereas  had  the  statute  been  satis- 

^  The  court  make  a  very  serious  error  vendor's  lien  may  continue  on  the  unde- 

in  Smith  v.  Surnian,  9  B.  &  C.  561,  576.  livered  residue,   and  the  purchaser  have 

They  say  :  "  The  only  question  is,  whether  the  right  to  object  to  the  quantity  and 

there   has   been  a  part  acceptance  of  the  quality  of  the  unaccepted  and  unreceived 

goods  sold,  and  actual  receipt  of  the  same."  residue,  just  as  the  lien  on  the  whole  of 

In  the  older  cases  the  court  did  not  advert  the  goods,  and  the  right  to  object  to  them 

to  the  words  of  tlie  statute.     But  the  la-  still  exist,  though  the  contract  be  taken 

ter  cases,  (Howe  v.   Palmer,  3  B.  &  Aid.  out  of  the  statute  by  a  note  or  nictuoran- 

321  ;    Hanson  v.  Armitago,  5  B.  &  Aid.  dum  in  writing,  or  by  the  part  payment 

559;    Carter  v.  Toussaint,   5  B.  &  Aid.  or  earnest  of  the  section.     The  rule  stated 

855  ;  Tempest  v.  Fitzgerald,  3  B.  &  Aid.  applies  to  the  case  where  it  is  claimed  that 

680),  have  established  that   unless  there  the  whole  of  the  goods  have  been  accepted 

has  been  such  a  dealing  on  the  part  of  the  and  actually  received,  and  where  the  test 

purchaser  as  to  deprive  him  of  any  right  then,  on  the  one  hand,  would  be  whether 

to  object  to  the  quantity  or  quality  of  the  the  lien  (wiiere  the  goods  have  not  been 

goods,  or  to  deprive  the  seller  of  his  right  sold  on  credit)  and  the  riglit  of  stoppage 

of  lien,  there  cannot  be  any  part  acceptance  in  transitu  were  extinguished,  and  an  ac- 

[receipt].     Here  there  was  nothing  to  show  tion  for  goods  sold  and   delivered  would 

that  the  vendor  had  lost  his  lien  for  the  lie ;  and,  on  the  other  hand,  wlicther  the 

price,  or  that  the  purchaser  had  lost  his  purchaser  could  maintain  trover   for  the 

right  to  oliject    to   the   finality.     As   we  goods,  as  for  their  wrongful  withholding 

have  pointed  out   in  ovir  previous   Part,  by  the  vendor  or  another. 
there  may  be  a  part  acceptance  and  re-  '^  10  Bing.  99. 

ceipt,  to  satisfy  the  statute,  and  yet  the  ^  lb.  376. 


448  COMMENTARIES   ON   SALES.  [BOOK  IV. 

fle(j  _  the  very  form  of  action  being  a  virtual  admission  that  it  was 
j;iot, the  action  should  have  been  for  goods  sold  and  delivered. 

The  case  of  Elliott  v.  Pybus  ^  was  one  where  the  sale  was  taken 
out  of  the  statute  by  a  part  payment,  and  where  the  action  was 
for  goods  bargained  and  sold.  While  there  was  clearly  such  an 
acceptance  of  the  goods  by  the  vendee,  and  acts  by  the  vendor,  as 
to  amount  to  an  appropriation  of  the  specific  goods,  so  that  the 
property  therein  had  passed  to  the  vendee,  under  which  a  count 
for  goods  bargained  and  sold  could  be  maintained,  the  case  was 
treated  as  coming  within  the  principle  of  the  cases  under  the 
Statute  of  Frauds  as  to  acceptance  and  actual  receipt.  But  we 
think  it  is  quite  clear  that  while  in  the  case  there  was  an  accept- 
ance of  the  subject  of  the  sale,  so  that  at  common  law  an  action 
for  goods  bargained  and  sold  would  lie ;  as  the  vendor's  lien  still 
attached  to  the  goods,  and  there  was  no  delivery  by  the  vendor, 
nor  actual  receipt  —  manual,  constructive,  or  symbolical  —  by  the 
vendee,  an  action  for  goods  sold  and  delivered  could  not  have 
been  maintained,  nor  would  the  case  have  been  without  the  statute 
except  for  the  part  payment.  The  sale  was,  exactly  as  the  case 
holds,  a  perfectly  good  bargain  and  sale  at  common  law,  dehors 
the  statute. 

We  have  previously  referred,  in  this  and  in  the  next  preceding 
Parts,  to  the  badly  decided  case,  by  Alderson,  B.,  of  Baines  v. 
Jevons,^  where  the  declarations  of  the  vendee,  which  were  sufficient 
to  show  an  acceptance  of  the  subject  of  the  sale,  were  held  to  take 
the  case  out  of  the  statute ;  the  actual  receipt  required  by  the 
statute  —  of  which  receipt  there  was  not  a  tittle  of  evidence  — 
being  entirely  ignored,  as  is  usual  in  so  many  of  the  loosely  de- 
cided English  cases  on  this  subject.  We  would  again  suggest,  as 
a  rule  to  meet  such  badly  decided  cases  as  Baines  v.  Jevons,  and 
those  others  which  rely  upon  statements  made  by  the  vendee, 
which  are  material  to  show  an  acceptance  of  the  subject  of  the 
sale,  but  do  not  touch  the  question  of  the  actual  receipt  at  all,  that 
where  evidence  of  the  actual  receipt  is  wanting,  such  statements, 
in  the  absence  of  such  evidence,  are  of  no  more  value  to  make  out 
an  actual  receipt  which  has  never  taken  place  than  they  are,  in  the 
analogous  case  under  the  statute,  to  make  out  a  part  payment 
when  no  such  part  payment  has  ever  been  made.^ 

1  10  Bing.  512.  such  a  delivery  by  the  vendor  there  was 

2  7  0.  &  P.  288.  not  a  tittle  of  evidence  in  Baines  i'.  Jevons, 

3  As  we  have  before  pointed  out  in  this  (7  C.  &  P.  288),  the  vendor,  as  far  as 
connection,  there  can  be  no  part  payment  appears  in  the  case,  being  himself  the 
by  the  vendee  unless  there  is  a  correspond-  holder  of  the  subject  of  the  sale,  with 
ing  receipt  by  the  vendor  ;  so  there  can  be  his  lien  attached,  and  there  is  nothing 
no  actual  receipt  by  the  vendee  without  an  whatever  in  the  case  to  show  that  the 
equally  actual  delivery  by  the  vendor.     Of  vendee     could    have    maintained    trover 


PAET   VII.]  THE    ACTUAL   RECEIPT.  449 

The  cases  of  Goodall  v.  Skelton  i  and  Boulter  v.  Amott,^  stated 
ante,  343,  n.  5,  both  of  which  were  actions  for  goods  sold  and 
delivered,  are  instances  where  the  acts  of  the  vendees  constituted 
the  "  acceptance  "  but  not  the  "  actual  receipt "  of  the  statute. 
The  court,  in  the  latter  case,  intimated  that  there  could  be  an 
"  acceptance "  —  treating  it  as  though  there  was  not  an  actual 
receipt  also  required  —  under  the  Statute  of  Frauds  which  would 
not  be  sufficient  to  sustain  an  action  for  goods  sold  and  delivered. 
There  may  be,  as  we  have  shown,  an  acceptance  and  an  actual 
receipt  of  ])art  of  the  goods  sufficient  to  satisfy  the  statute,  where 
an  action  for  the  undelivered  part  will  not  lie  for  goods  sold  and 
delivered ;  but  where,  as  in  Boulter  v.  Arnott,  the  claim  is  that 
the  whole  of  the  goods  have  been  delivered,  and  there  have  been 
no  acceptance  and  actual  receipt  of  a  part,  the  requirements  of 
the  statute  as  to  an  actual  receipt  are  no  more  met  than  the 
facts  are  sufficient  to  sustain  an  action  for  goods  sold  and  de- 
livered. The  mistake  in  the  matter,  in  all  these  English  cases, 
arises  from  the  extraordinary  manner  in  which  they  have  per- 
sisted in  ignoring  the  "  actual  receipt "  of  the  statute.^ 

In  Johnson  v.  Dodgson*  there  was  a  purchase  by  sample,  and 
the  jury  found  that  the  bulk-samples  corresponded  with  the 
samples  by  which  the  purchase  was  made.  The  bulk-samples 
were  sent  by  coach  to  the  defendant,  who  refused  to  receive  them. 
The  coach,  in  this  case,  seems  to  have  been  treated  as  the  agent 
of  the  vendee  to  receive  the  bulk-samples ;  ^  but  the  case  on  the 
point  is  not  of  much  value,  and  it  is  really  decided  on  another 
point,  —  that  of  a  memorandum  in  writing  of  the  contract. 

It  was  held  in  Elliott  v.  Thomas,*^  where  the  contract  was  en- 
tire, but  the  goods  consisted  of  articles  of  different  descriptions, 

against   him   for  the  subject  of  the  sale,  statute  of  frauds."     But  they  do  not  stop 

We  are  surprised  to  find  that  neither  Ben-  to  explain,  as  the  statute  requires  both  an 

jamin  (although  he  cites  the  case)  nor  any  acceptance  and  an  actual  receipt,  how,  in 

other  of  the  English  jurists  shows  the  un-  these  cases,  the  sales  could  have  been  taken 

soundness    of    liaines    v.    Jevons,    except  out  of  the  statute,  where  there  was  only  an 

Camy)bell,  who   points   out,    as   we   have  acceptance,  and  "not  a  delivery"  or  its 

done  before,  referring  to  that  writer,  that,  correlative,   an  actual   receipt.     Until  we 

in  it  there  was  "  no  evidence  whatever  of  entered  on  this  investigation,  we  did  not 

actual  receipt."    Camp,  on  Sales,  180.    As  think  it  possible   that  there  could  be  as 

intimated  by  us  (see  supra,  p.  442,  n.  1),  many    badly-decided    cases,    and    utterly 

we  will  consider,  in  a  later  volume  of  this  vicious  dida,  among  the  English  decisions, 

woik,  the  effect  of  the  application  of  the  on  any  subject,  as  we  find  there  are,  down 

doctrine  of  estoppel  in  such  cases.  even  to  the  present  time,  in  connection 

1  2  H.  Bl.  316.  with  this  branch  of  the  statute  of  frauds. 

2  1  Cr.  &  M.  333.  «  2  M.  &  W.  653. 

3  On  the  argument  in  this  case,  Lord  ^  See,  as  to  the  receipt  by  a  carrier, 
Lyndhurst,C.  B.,  and  Bailey  and  Vaughan,  Vale  v.  Bayle,  Cowp.  294;  Anderson  v. 
BB.,  treated  such  cases  as  Hodgson  v.  Le  Hodgson,  5  Price,  630 ;  Hart  i*.  Sattley, 
Bret,  1  Camp.  233,  and  Anderson  v.  Scott,  3  Camp.  528  ;  Astley  v.  Emery,  4  M.  &  S. 
]  Camp.  234,  n.,  as  holding  that,  in  those  262  ;  Dawes  v.  Peck,  8  T.  K.  330  ;  Dut- 
cases,  there  was  "  not  a  delivery,  bvt  an  ton  v.  Solomonson,  3  B.  &  P.  582. 
acceptance,  to   take   the   case  out  of  the          o  3  m.  &  w.  170. 

VOL.  II.  29 


450 


COMMENTARIES   ON   SALES. 


[book  IV. 


that  the  receipt  and  acceptance  of  one  of  the  articles  was  suf- 
ficient, where  there  was  a  receipt  of  the  whole  of  the  articles 
furnished  according  to  the  contract,  and  such  as  ought  to  have 
been  delivered  pursuant  to  it,  to  take  the  case  out  of  the  contract 
with  respect  to  the  whole  of  the  goods.  The  question  in  such 
cases  is  as  to  the  entirety  of  the  contract.  And  in  Jordan  v. 
Norton,!  -vv^here  there  was  a  receipt  of  the  subject  of  the  sale,  but 
no  acceptance  of  it  as  within  the  terms  of  the  contract,  it  was 
held  that  the  statute  was  not  satisfied.  In  this  case  the  parties 
were  not  ad  idem  as  to  the  subject  of  the  sale. 

"Wright  V.  Percival  ^  was  a  case  where  there  was  an  acceptance 
of  the  subject  of  the  sale,  —  a  carriage.  It  was  held  that  there 
was  an  actual  receipt  of  it,  as  the  vendor  was  simply  holding  it 
as  the  bailee  or  custodian  of  the  vendee.  Although  stated 
otherwise  in  this  case,  there  is  no  case  where  there  have  been  an 
acceptance  and  actual  receipt  by  the  vendee  of  the  whole  of  the 
goods  so  as  to  take  the  case  out  of  the  statute,  —  where  there  is 
no  receipt  of  a  part  to  be  relied  on,  —  but  that  the  lien  ^  and  the 


1  4  M.  &  W.  155. 

2  8  L.  J.  N.  s.  Q.  B.  258,  stated  and 
fully  considered,  ante,  345  e<  seq. 

^  See  further  as  to  the  extinction  of  the 
vendor's  lien  by  the  possession  passing  to 
the  vendee,  Goodall  v.  Skelton,  2  H.  BI. 
316  ;  Carter  v.  Toussaint,  5  B.  &  Aid. 
855  ;  Baldey  v.  Parker,  2  B.  &  C.  37,  40, 
44 ;  Rohde  v.  Thwaites,  6  B.  &  Cr.  383  ; 
Smith  V.  Surman,  9  B.  &  C.  561,  577  ; 
Proctor  V.  Jones,  2  C.  &  P.  532  ;  Maberley 
V.  Sheppard,  10  Bing.  99,  101  ;  Elmore  v. 
Stone,  1  Tannt.  458,  460  ;  Holmes  v.  Hos- 
kins,  9  Ex.  753,  755  etseq. ;  Bill  v.  Bament, 
9  M.  &  W.  36  ;  Edan  v.  Dudfield,  5  Jur. 
316  ;  Bushel  v.  Wheeler,  8  Jur.  532  ; 
Pettit  V.  Mitchell,  4  M.  &  G.  819  ;  Mar- 
vin V.  Wallis,  6  E.  &  B.  726  ;  Castle  v. 
Svvorder,  5  H.  &  N.  281 ;  6  H.  &  N.  828  ; 
Morton  v.  Tibbett,  15  Q.  B.  428,  438  ; 
Marshall  v.  Green,  1  C.  P.  Div.  35  ;  1 
Bouv.  Law  Diet.  (a.  d.  1883),  p.  90,  tit. 
"Lien." 

"  Upon  a  sale  of  specific  goods  for  a  spe- 
cific price,  by  parting  with  the  possession, 
the  seller  parts  with  his  lien.  The  statute 
contemplates  such  a  parting  with  the  pos- 
session, and,  therefore,  as  long  as  the 
seller  preserves  his  control  over  the  goods, 
so  as  to  retain  his  lien,  he  prevents  the 
vendee  from  accepting  and  receiving  them 
as  his  own,  within  the  meaning  of  the 
statute."  Per  Holrovd,  J.,  in  Baldey  v. 
Parker,  2  B.  &  C.  37",  44.  In  Beaumont 
V.  Brengeri,  5  C.  B.  301,  306,  308,  it 
seems  to  be  implied  from  the  statement  of 
connsel  and  the  remarks  of  Maule,  J.,  that 
they  were  of  the  opinion  that  there  could 
be  an  acceptance  and  actual  receipt  of  the 


whole  of  the  goods  purchased,  and  yet  the 
vendor's  lien  for  the  price  remain  intact. 
But  the  case  really  holds  that  there  was  the 
sale  of  a  specific  article,  which  itself,  at 
common  law,  making  a  sale,  constitutes  an 
acceptance  of  it  as  the  subject  of  the  sale 
within  the  meaning  of  the  statute  ;  and 
that  the  dealing  with  the  subject  of  the 
sale  by  the  vendee,  with  the  consent  of 
the  vendor,  constituted  an  actual  receipt 
of  it,  even  though  it  was  subsequently  re- 
turned to  the  custody  of  the  vendor,  who 
held  it  thereafter,  not  as  owner,  but  as  the 
agent  or  bailee  of  the  vendee.  And,  of 
course,  holding  it  not  as  owner,  but  as 
agent  or  bailee  of  the  vendee,  the  lien  as 
owner  was  gone,  as  was  held  in  Elmore  v. 
Stone,  1  Taunt.  458. 

Dodsley  i-.  Varley,  12  A.  &  E.  632,  is 
a  peculiar  case.  There  wools  had  been 
purchased  and  accepted.  They  were  bought 
for  the  defendant  by  his  agent,  for  a  spe- 
cific price,  but  were  not  weighed.  They 
were  taken  by  the  agent  to  the  warehouse 
of  a  third  person,  where  the  agent  collected 
the  wools  which  he  purchased  for  the  de-" 
fendant  from  various  persons,  and  to  which 
place  the  defendant  sent  sheeting  for  the 
packing  of  the  wools,  and  they  were  there 
weighed  and  packed,  but  were  not  paid 
for.  It  was  the  custom  for  the  wools 
to  remain  at  this  place  until  paid  for. 
It  was  claimed  here  for  the  defendant 
that,  under  the  custom,  the  plaintiff 
had  never  lost  his  lien,  and  consequently 
that  there  could  have  been  no  actual  re- 
ceipt by  him  to  satisfy  the  statute.  The 
court  held  that  the  receipt  was  sufficient 
to  satisfy  the  statute,  the  property  and 


PaRT   VII.] 


THE    ACTUAL   RECEIPT. 


451 


stoppage  in  transitu  of  Mie  vendor  are  gone,  and  the  right  of  the 
vendee  to  reject  the  goods  is  also  at  an  end.  The  contract  is  then 
deemed  to  be  good,  and  the  property  and  possession  in  the  whole 
of  the  goods  are  then  in  the  vendor.  This,  as  we  have  pointed 
out,  does  not  apply  where  but  part  of  the  goods  has  been  re- 
ceived. Neither  does  it  affect  the  remedies  of  the  vendee,  as 
they  existed  at  common  law  independent  of  the  statute,  for  breach 
of  warranty,  express  or  implied,  where  there,  as  under  the  statute, 
the  property  and  possession  had  both  passed  to  the  vendee.^ 

The  holding  in  Harris  v.  Matthews  ^  may  be  made  intelligible, — 
the  goods  there  having  been  delivered  to  the  servants  at  an  inn 
where  the  defendant  was  in  the  habit  of  stopping  and  of  receiving 
goods  —  on  the  ground  that  he  had  made  the  inn  his  warehouse, 
and  that,  from  the  undue  detention  of  the  goods  there,  without 
rejecting  them,  after  their  actual  receipt,  an  acceptance  would  be 
implied.  This  is  a  very  different  principle  from  implying  an  ac- 
tual receipt  where  there  had  been  no  receipt.  The  acceptance, 
which  is  an  act  of  the  mind,  may  be  implied  from  laches  by  the 
vendee,  after  receipt.^     A  receipt,  which  is  an  actual  transmis- 


possession  in  and  of  the  goods  being  in 
the  defendant,  although  the  plaintiff  liad 
not  what  is  commonly  called  a  lien,  deter- 
minable on  the  loss  of  possession,  but  a 
special  interest,  sometimes  but  improperly 
called  a  lien,  growing  out  of  his  original 
ownership,  independent  of  the  actual  pos- 
session, and  consistent  with  the  property 
and  the  possession  being  in  the  defendant. 
This  the  plaintiff  retained  in  respect  of  the 
term  agreed  on,  that  the  goods  should  not 
be  removed  to  their  ultimate  place  of  des- 
tination before  payment ;  such  special  in- 
terest being  consistent  with  the  property 
and  possession  having  both  passed  to  the 
bu3'er.  The  special  interest  here  would  be 
more  in  the  nature  of  a  mortgage  than  a 
lien  ;  and  even  then  only  of  effect,  if  at 
all,  while  in  the  ownership  of  the  vendee. 
As  the  possession  was  out  of  the  vendor, 
the  special  interest  could  not  be  enforced 
as  a  lien  could  be,  as  that  is  enforced  only 
by  virtue  of  the  possession.  The  custom 
would  amount  to  no  more  than  an  express 
agreement  by  the  vendee  not  to  remove 
the  goods  until  they  were  paid  for  ;  the 
breach  of  the  agreement  giving  no  remedy 
in  rem.  Thus,  in  Pettitt  u.  Mitchell,  4  M. 
&  G.  819,  841,  Maule,  J.,  says  :  "Accord- 
ing to  the  ordinary  understanding  of  the 
English  language,  as  soon  as  an  article  is 
put  into  the  hands  of  a  party,  that  is  a 
delivery  to  him  ;  the  lien  of  the  vendor  is 
then  parted  with,  and  the  vendee  is  in  pos- 
session. If  the  lien  still  continued,  how 
could  it  be  enforced  ?  It  must  be  either 
by  forcibly  taking  the   article   from   the 


vendee,  or  by  imprisoning  him  with  the 
article  in  his  possession  ;  either  of  which 
would  be  a  very  inconvenient  course." 

1  Where  there  are  an  acceptance  and 
actual  receipt  of  the  whole  of  the  goods, 
though  it  be  subsequently  found  that  there 
is  a  deficiency  in  the  goods  in  quantity  or 
quality,  there  being  no  fraud,  the  vendee 
cannot  reject  the  goods,  but  is  left  to  his 
action.  See  Pettit  v.  Mitchell,  4  M.  &  G. 
819,  833.  But  the  same  rule  does  not  ap- 
ply where  the  sale  is  by  sample,  or  where 
there  have  been  an  acceptance  and  receipt 
of  only  part  of  the  goods.  There,  after 
receipt  of  the  residue,  if  they  are  not  the 
goods  which  are  purchased,  or  do  not  con- 
form to  the  sample,  they  can  be  rejected. 
lb.,  p.  836.  And  see  Howe  v.  Palmer, 
3  B.  &  Aid.  321  ;  Lorymer  v.  Smith,  1 
B.  &  C.  1  ;  Chapman  v.  Morton,  11  M.  & 
W.  .'534  ;  Street  v.  Blav,  2  B.  &  Ad.  456  ; 
Horncastle  v.  Farren,  "3  B.  &  Aid.  497  ; 
Campbell  v.  Fleming,  1  A.  &  E.  40  ;  Hunt 
V.  Silk,  5  East,  449,  and  cases  stated  infra. 

2  3  .Jur.  1192. 

3  In  Richardson  v.  Dunn,  2  Q.  B.  645, 
the  defendant,  by  letter,  requested  tiiat 
plaintiff,  a  coal  merchant  at  Stockton, 
would  send  to  him  at  Southampton,  as 
early  and  as  low  as  possible,  from  200  to 
300  tons  of  coal,  either  by  Tlie  Navigator 
or  other  vessel.  Plaintiff,  by  letter,  con- 
sented. The  Navigator  could  not  be  ob- 
tained, and  would  not  have  carried  200 
tons.  Plaintiff,  on  December  31 ,  shijiped 
152  tons  for  Southampton  by  another  ves- 
sel ;  and,  by  letter  of  tiie  same  date,  in- 


452  COMMENTARIES    ON   SALES.  [BOOK   IV. 

sion  of  possession,  and  which  involves  the  acts  of  both  the  vendor 
and  vendee,  cannot  be  implied,  notwithstanding  an  acceptance, 
where  there  has  been  no  actual  transmission  of  the  possession, 
manual,  constructive,  or  symbolical,  from  the  vendor  to  the  ven- 
dee. Whether  the  receipt  be  of  a  part  or  the  whole  of  the  goods, 
the  legal  possession  thereof  must  pass  to  the  vendee,  or  there  is 
no  receipt  by  him.  * 

Goods  were  bought,  at  a  stipulated  price,-  payable  on  delivery. 
On  their  arrival  at  the  vendor's  warehouse,  the  vendee  went  there 
and  directed  the  mark  on  the  goods  to  be  changed.  This  was 
done,  but  the  goods  remained  in  the  possession  of  the  vendor,  with 
his  lien  attached.  It  was  held  that  the  statute  had  not  been 
complied  with,  there  having  been  no  actual  receipt.^ 

Where  goods  are  in  the  possession  of  a  party  who  buys  them 
from  the  owner,  evidence  of  the  sale  of  the  goods  by  the  vendor 
to  the  vendee,  and  of  a  subsequent  dealing  with  the  goods  by  the 
latter,  as  owner,  is  sufficient  to  sustain  the  finding  of  the  jury  that 
there  has  been  a  transfer  of  the  property  and  possession  in  and 
of  the  goods  by  the  vendor  to  the  vendee  to  satisfy  the  statute.^ 
And  where  the  goods  have  been  actually  received  by  the  vendee, 
but  he  claims  they  are  not  the  goods  which  he  purchased,  if  he 
treat  them  as  his  own  by  selling  them,  the  case  will  be  taken  out 
of  the  statute.^  But  where  he  has  not,  in  fact,  received  any  part 
of  the  goods,  as  where  the  right  of  stoppage  in  transitu  continues  ; 
there,  as  the  possession  is  not  in  him,  there  has  been  no  actual 
receipt  by  him  to  satisfy  the  statute ;  and  where  there  is  no  actual 
receipt,  manual,  constructive,  or  symbolical,  as,  for  instance, 
where  the  goods  remain  for  a  lengthy  period  in  the  warehouse  of 
the   vendor's  carrier,   without  being   actually    received    by    the 

formed  defendant  that  he  had  done  so,  stat-  the  order  had  been  precisely  executed,  and 

ing  also  that  he  had  drawn  at  two  months  was  liable. 

for  the  price,  payable   in    London.      He  i  It  is  upon  this  principle,  as  we  have 

also  inclosed  an  invoice,  and  asked  if  he  shown,  that  where  the  whole  of  the  goods 

should  engage  another  ship  to  make  up  have  been  accepted  and  actually  received 

the    quantity.      Defendant    returned    no  so  as  to  satisfy  the  statute,  as  there  is  no 

answer.      On  January  6   the   ship,  with  longer  any  possession  in  the  vendee  of  any 

the  coals,  was  lost.    Plaintiff,  according  to  of  the  goods  there  is  nothing  to  which  a 

the  notice  in  his  letter,  drew  a  bill  on  de-  lien  can  attach,   and,   therefore,  in  such 

fendant,  which  was  paid  into  a  banker's  at  case  the  lien  on  the  whole  o.f  the  goods  is 

Stockton  on  January  4,  reached  Southamp-  gone.     See  cases  cited  in  note  3  to  p.  450, 

ton  a  few  days  later,  and  was  presented  to  and  cases  in  the  following  notes, 
defendant  for  acceptance.    The  defendant,  ^  -q^w  ^   Bament,  9  M.  &  W.  35. 

having  heard  the  ship  was  lost,  refused  s  E,ian  v.  Dudficld,  1  Q.  B.  551. 

to  accept  the  bill.     In  an  action  for  goods  *  Chapman  v.   Morton,    11    ]\I.  &  "VV. 

sold  and  delivered,  the  court  held  that  the  534.     And  see  Street  v.  Blay,  2  B.  &  Ad. 

defendant,  by  his  silence,  had  acquiesced  456  ;    Horncastle  v.  Farren,'  3  B.  &  Aid. 

in   the  course  of  the  plaintiff,  and  that,  497;  Parker  v.  Palmer,  4  B.  &  Aid.  387; 

having  waived  objection  to  the  plaintiffs  Campbell  v.  Fleming,  1  A.  &  £.  40  ;  Hunt 

departure  from  strict  compliance  with  the  v.  Silk,  5  East,  449. 
order,  he  was  in  the  same  condition  as  if 


PART   VII.]  THE   ACTUAL   RECEIPT.  453 

vendee, — the  right  of  stoppage  in  transitu  still  continuing  in  the 
vendor,  —  delay  on  the  part  of  the  vendee  in  notifying  the  vendor 
rof  his  refusal  to  receive  the  goods  will  not  supply  the  necessity  of 
the  actual  receipt  required  by  the  statute.^ 

The  case  of  Bushel  v.  Wheeler,^  which  has  been  much  ques- 
tioned, which  we  liave  fully  examined  in  the  previous  Part,  and 
which  we  think  for  reasons  we  have  there  stated  is  not  well  decid- 
ed, seemed  to  assume  that  though  the  stoppage  in  tratisitu  in  that 
case^  existed,  there  might  still  have  been  an  actual  receipt  of  the 
goods  by  the  vendee.  The  reason  assigned  by  Coleridge,  J.,  for 
this  is,  that  a  memorandum  in  writing  would  take  the  case  out  of 
the  statute,  and  yet  that  the  lien  of  the  seller  and  his  right  of 
stoppage  would  continue.  That  is  perfectly  true  ;  and  it  is  also 
true  that  where  there  have  been  but  an  acceptance  and  actual  re- 
ceipt of  part  of  the  goods,  the  case  is  taken  out  of  the  statute,  be- 
cause in  the  former  case,  the  whole  of  the  goods  remain  in  the 
possession  of  the  vendor,  and,  in  the  latter  case,  all  of  them  ex- 
cept the  part  which  has  been  actually  received ;  so,  in  the  former 
case,  the  vendor's  lien  and  right  of  stoppage  in  transitu  would  con- 
tinue to  attach  to  the  whole  of  the  goods,  and  in  the  latter  case,  to 
the  part  not  actually  received  by  the  vendee.  But,  to  sustain 
Bushel  V.  Wheeler,  it  would  be  necessary  to  hold  that  the  vendee 
had  actually  received  the  whole  of  the  goods ;  that  there  had  been 
an  actual  manual,  constructive,  or  symbolical  transmission  of  the 
possession  of  the  whole  of  the  goods,  to  him  :  and  if  so,  this,  ob- 
viously, of  necessity  would  extinguish  the  lien  and  the  right  of 
stoppage  in  transitu  in  the  whole  of  the  goods,  and  the  case  of  the 
memorandum  in  writing  is  entirely  without  point  where,  unlike 
that  case,  the  actual  receipt  and  possession  of  the  whole  of  the 
goods  are  in  the  vendee.  Obviously,  Bushel  v.  Wlieeler  *  is  of  no 
authority  whatever,  as  regards  the  frequently  quoted  dicta  which 
it  contains.^ 

1  Farina  v.  Howe,  16  M.  &  W.  119.  *  8  Jur.  532. 

And  see  Hanson  v.  Armitage,  5  B.  &  Aid.  ■'  In  Norman  v.  Phillips,  14  M.  &  W. 
557;  Coates  v.  Chaplin,  6  Jur.  1123;  277,  283,  Alderson,  B.,  says:  "The  car- 
Clarke  V.  Hutchins,  14  East,  475  ;  Free-  rier  is  only  an  agent  for  the  purpose  of 
man  v.  Birch,  1  Nev.  &  M.  420  ;  Swain  carryinrj."  For  cases  where  there  has 
V.  Shepherd,  1  M.  &  Rob.  223  ;  Elmore  v.  been  an  actual  receipt  of  the  goods  by  the 
Kingscote,  5  B.  &  C.  583  ;  Hoady  v.  Mac-  vendee,  the  right  of  stojipagc  in  transitu 
laine,  10  Bing.  482.  But  a  keeping  of  being  gone,  see  Nicholson  v.  Pavitt,  1  E. 
and  dealing  with  the  indicia  of  owner-  &  E.  172  ;  Foster  v.  Fi-ampton,  6  B.  &  C. 
ship,  as  the  bill  of  lading,  may  amount  to  107;  Hanuuond  v.  Anderson,  1  B.  &  P. 
a  constructive  receipt,  to  satisfy  the  ac-  N.  R.  69  ;  Whitehouse  v.  Frost,  12  East, 
tual  receipt  of  the  statute.  Currie  w.  An-  614;  Stovehl  v.  Hughes,  14  East,  308; 
derson,  2  E.  &  E.  591.  And  see  Meredith  Hurry  v.  Mangles,  1  Camp.  452;  Harinan 
V.  Meigh,  2  E.  &  P..  364  ;  Morton  v.  Tib-  v.  Anderson,  2  Camp.  242  ;  Withers  o. 
bett,  15  Q.  B.  428.  Lyss,   4  Camp.  237;    Spear  v.  Travers,  4 

2  8  Jur.  532.  Camp.  251 ;  Lucas  v.  Dorrein,  1  B.  Moore, 
8  See  per  Coleridge,  J.  at  p.  533.  29;    Green  v.  Ilaythorne,   1   Stark.  447; 


454 


COMMENTARIES   ON   SALES. 


[book   IV. 


Where  an  order  is  given  for  goods  and  part  of  them  are  actually 
received,  where  there  is  also  the  necessary  acceptance,  and  the 


Hawes  v.  Watson,  2  B.  &  C.  540  ;  Suott 
V.  Pettit,  3  B.  k  P.  469  ;  Richardson  v. 
Gos9,  3  B.  &  P.  119  ;  Weutworth  v.  Outh- 
waite,  10  M.  &  W.  436  ;  Allen  v.  Gripper, 
2  Or.  &  J.  218;  Whitehead  v.  Ander- 
son, 9  M.  &  W.  518  ;  James  v.  Griffin,  2 
M.  &  \V.  623  ;  Heinekey  v.  Earle,  8  E.  & 
B.  410  ;  Rowe  v.  Pickford,  8  Taunt.  83  ; 
Ellis  V.  Hunt,  3  T.  R.  465  ;  Dixon  v. 
Baldwin,  5  East,  175  ;  Morton  v.  Tibbett, 
15  Q.  B.  428  ;  Smith  v.  Hudson,  6  B.  & 
S.  431  ;  Kibble  v.  Gough,  38  L.  T.  N.  s. 
204  ;  Rickard  v.  Moore,  38  L.  T.  N.  s. 
841;  Page  v.  Morgan,  15  Q.  B.  Div.  228. 
As  there  can  be  no  actual  receipt  by  the 
vendee,  i.e.,  no  actual  transmission  of  the 
possession  to  him,  so  long  as  the  vendor's 
lien  or  right  of  stopjiage  in  transitu  con- 
tinues, it  follows  as  a  necessaiy  corollary 
that  the  carrier  is  not,  contrary  to  the 
view  expressed  by  Blackburn,  Benjamin, 
and  other  writers,  the  vendee's  agent  to 
actually  receive  the  goods,  to  take  the 
case  out  of  the  statute;  for  if  he  were, 
the  right  of  stoppage  in  transitu  could  not 
exist  after  the  actual  receipt  of  the  goods 
by  the  vendee  or  his  duly  authorized 
agent.  And  another  conclusion  also  re- 
sults from  a  number  of  the  above  cases, 
viz.,  that  even  where,  at  the  terminus  of 
the  transit,  the  dock-man  or  warehouse- 
man is  the  agent  of  the  vendee  to  actually 
receive  the  goods  for  him,  the  constructive 
possession  of  the  goods  being  in  the  ven- 
dee, the  dock-man  or  warehouseman,  and, 
therefore,  on  the  same  principle,  the  car- 
rier, where  the  latter  is  the  vendee's  own 
carrier,  although  he  may  be  in  such  case 
the  vendee's  agent  to  receive  the  goods  for 
him,  is  clearly  not,  as  is  shown  by  such 
decisions,  the  vendee's  agent  to  accept  the 
goods.  This  fact  has  probably  led  so 
many  of  the  writers  to  state  incorrectly, 
in  effect,  that  though  the  carrier  is  not 
the  vendee's  agent  to  accept  the  goods,  he 
is  his  agent  to  actually  receive  them.  But, 
in  fact,  as  the  cases  show,  and  as  the  prin- 
ciple clearly  is,  the  carrier,  qiid  carrier, 
is  neither  the  vendee's  agent  to  actually 
receive  the  goods  for  him,  under  the  stat- 
ute, nor  to  accept  them ;  his  receipt,  dur- 
ing the  continuance  of  the  transitus,  being 
that  of  the  shipper,  with  his  qualified  lien 
still  attaching  to  the  goods.  Another  im- 
portant conclusion  also  results  from  the 
fact,  that  while,  as  those  cases  correctly 
show,  the  dock-man,  railway  station 
agent,  or  warehouseman,  and,  therefore, 
the  master  of  the  vendee's  own  ship 
(whose  position  in  the  matter  is  strictly 
analogous  to  that  of  the  warehouseman, 
etc.),  may  be  the  agent  to  actually  receive 


the  goods  for  the  vendee,  he  is  not  the 
agent  to  accept  them  ;  showing,  notwith- 
standing the  dicta  of  so  many  of  the  Eng- 
lish judges,  and  so  many  of  the  English 
cases  in  which  this  distinction  is  ignored, 
the  marked  difference  really  existing  be- 
tween the  accepting  and  the  actual  re- 
ceipt of  the  statute  ;  the  l^jter  being,  in 
etiect,  a  corporeal  act  in  the  transmission 
of  the  very  possession  of  the  goods  from 
the  vendor  to  the  vendee  ;  the  former, 
the  exercise  of  the  judgment  by  the  ven- 
dee, —  an  act  of  the  mind  in  accepting, 
approving,  adopting,  taking  to  the  par- 
ticular goods  as  the  very  subject  of  the 
contract. 

The  case  of  Norman  v.  Phillips,  14  M. 
&  W.  277,  stated  by  us,  supra,  in  which 
Bushel  V.  Wheeler,  8  Jur.  532,  is  dis- 
approved, is  quite  in  point.  There  the 
goods  were  shipped  by  a  railway,  and  on 
their  arrival  at  the  terminus,  the  vendee, 
being  advised  of  their  arrival,  refused  to 
receive  the  goods.  Although  considerable 
time  elapsed  before  the  vendee  notified  the 
vendor  of  his  refusal  to  receive  the  goods, 
the  court  held  that,  if  he  had  himself  re- 
ceived the  goods,  by  retaining  them  an 
unreasonable  time,  his  acceptance  of  them 
might  have  been  presumed  ;  but  having 
objected  to  receive  them,  they  not  having 
been  delivered  to  him,  acceptance  in  such 
a  case  could  not  be  presumed.  Alderson, 
B. :  "Where  goods  are  in  a  party's  own 
hands,  he  has  an  opportunity  of  examin- 
ing them,  and  his  sa}ang  nothing  in  such 
a  case  would  be  evidence  of  acceptance  by 
acquiescence."  It  is  to  be  regretted  that, 
even  in  this  case,  the  usual  failure  to  dis- 
criminate between  the  actual  receipt  and 
the  acceptance  of  the  statute  is  mani- 
fested. Thus  Alderson,  B.,  says  (the 
italics  being  his  own)  :  "He  must  ac- 
cept the  goods,  and  actually  receive  the 
same,  to  constitute  an  acceptance  within 
the  meaning  of  the  statute.  Here  the 
goods  are  sent  in  the  usual  way  ;  but 
when  they  arrive  at  the  carrier's  ware- 
house, the  defendant  refuses  to  take  them. 
That  can  scarcely  be  said  to  be  an  accept- 
ance." When  the  vendee,  on  the  goods 
arriving  "at  the  carrier's  warehouse,"  re- 
fuses to  take  them,  then,  as  several  of 
the  above  cases  show,  and  as  is  clear  law, 
the  right  of  stoppage  in  transitu  may  l>e 
exercised  by  the  vendor,  and  hence,  in 
such  case,  the  vendee  has  not  "actually 
received  the  same,"  much  less  has  he  ac- 
cepted them.  It  very  clearly  does  not 
require  both  an  accepting  of  the  goods 
and  an  actual  receipt  of  them  "to  con- 
stitute an  acceptance  of  them  within  the 


PART    VII.] 


THE   ACTUAL   RECEIPT. 


455 


contract  for  the  whole  of  the  goods  is  an  entire  one,  the  receipt  of 
the  part  takes  the  case  out  of  the  statute.^ 

The  holding  in  Farina  v.  Howe^  recognizes  and  establishes  the 
distinction  which  exists  between  the  acceptance  and  the  actual  re- 
ceipt of  the  statute.  There  goods  were  shipped  from  abroad  to 
England,  bj  the  plaintiffs,  on  the  verbal  order  of  the  defendant, 
at  a  price  exceeding  £10.  They  were  sent  to  a  shipping  agent  of 
the  plaintiffs  in  London,  who  received  them  and  warehoused  them 
with  a  wharfinger,  informing  the  defendant  of  their  arrival.  The 
wharfinger  handed  to  the  shipping  agent  a  delivery  warrant, 
whereby  the  goods  were  made  deliverable  to  him  or  his  assigns  by 
indorsement,  on  payment  of  rent  and  charges.  The  agent  in- 
dorsed and  delivered  this  warrant  to  the  defendant,  who  kept  it 


meaning  of  the  statute."  Cusack  v. 
Robinson,  1  B.  &  S.  299.  It  requires 
both  an  acceptance  and  actual  receipt  to 
satisfy  the  statute  ;  but  the  acceptance 
and  the  actual  receipt  of  the  statute  are 
essentially  different  entities,  though,  as 
Alderson,  B.,  has  intimated,  an  acceptance 
may  be  implied  where  the  vendee,  after 
receiving  the  goods  which  have  been  de- 
livered to  him,  retains  them  an  unreason- 
able time,  without  exercising  his  right  of 
rejection  —  that  is,  his  refusal  to  accept  — 
after  their  actual  receipt.  As  we  have 
seen,  where  there  has  been  a  purchase  by 
sample,  and,  on  receipt  of  tlie  bulk  of  the 
goods,  if  they  do  not  correspond  with  the 
sample,  they  may  be  rejected.  But  if  they 
are  kept  and  dealt  with  by  the  vendee  as 
owner,  the  acceptance  of  them  will  be  im- 
plied. Chapman  v.  Morton,  11  M.  &  W. 
534. 

1  Scott  V.  Eastern  Counties  V\,y.  Co.,  12 
M.  &  W.  33  ;  Baldey  v.  Parker,  2  B.  & 
C.  37;  Shirley  v.  Hey  ward,  2  H.  Bl. 
509  ;  Elliott  v.  Thomas,  3  M.  &  W.  170  ; 
Mills  V.  Hunt,  17  Wend.  333  ;  20  Wend. 
431.  Alderson,  B.,  in  Scott  v.  Eastern 
Counties  Ry.  Co.,  12  M.  &  W.  at  p.  36, 
says  :  "  If  I  make  a  contract  for  goods  al- 
ready made,  and  goods  to  be  made,  and  I 
accept  the  goods  made,  it  shows  that  I 
made  the  contract,  which  is  what  the  act 
means."  The  act  means,  as  it  literally 
states,  that  there  must  be  both  an  accept- 
ance and  an  actual  receipt  of  some  part  of 
the  goods  to  supply  the  evidence  of  the 
contract.  Where  goods  are  ordered  and 
actually  received,  and  received  without 
objection  being  made  in  a  reasonable 
time,  the  accei)tance,  as  we  have  seen, 
may  be  imjdicd  ;  but  the  acceptance  is 
not  by  any  means  involved  in  the  actual 
receipt  alone.  Goods  which  have  not  been 
accepted  may  be  received  and  be  rejected. 
But  where  goods  already  in  the  possession 


of  a  party  are  sold  to  him,  and,  as  there  is 
already  the  possession  in  him,  if  it  appears 
that  his  conduct  in  dealing  with  them  is 
wholly  inconsistent  with  the  supposition 
that  his  former  possession  continues  un- 
changed,—  if  such  facts  are  clearly  shown, 
he  may  be  properly  said  to  have  accepted 
and  actuall}-  received  such  goods  under  a 
contract,  so  as  to  take  the  case  out  of  the 
operation  of  the  statute  of  frauds  ;  as,  for 
instance,  if,  in  such  case,  he  sells  or  at- 
tempts to  sell  goods,  or  if  he  disposes  ab- 
solutely of  the  whole  or  any  part  of  them, 
or  attempts  to  do  so,  or  alters  the  nature 
of  the  property,  or  the  like.  Per  Aider- 
son,  B.,  in  Lilly  white  v.  Devereux,  15  M. 
&  W.  285.  And  see  Edan  v.  Dudfield, 
1  Q.  B.  302,  where  Lord  Denman,  C.  J., 
says  :  "We  have  no  doubt  that  one  per- 
son in  possession  of  another's  goods  may 
become  the  purchaser  of  them  by  parol, 
and  may  do  subsequent  acts,  without  any 
writing  between  the  parties,  which  amount 
to  acceptance  [and  actual  receipt] ;  and 
the  effect  of  such  acts,  necessarily  to  be 
proved  by  parol  evidence,  must  be  sub- 
mitted to  the  jury.  We  entertain  this 
opinion  after  fully  considering  all  the 
cases  cited,  especially  Elmore  v.  Stone, 
1  Taunt.  458  ;  Nicholle  v.  Plume,  1  C.  & 
P.  272  ;  Maberley  v.  Sheppard,  10  Bing. 
99,  —  agreeing  that  such  evidence  must 
be  unequivocal ;  but  thinking  the  ques- 
tion, whether  it  is  so  under  all  the  cir- 
cumstances, fact  for  the  jury,  not  matter 
of  law  for  the  court."  See  Dodsley  v. 
Varley,  12  A.  &  E.  632.  In  Lillywhite 
V.  Devereux,  15  M.  &  W.  285,  the  court 
considered  that  the  evidence  did  not  war- 
rant the  finding  of  the  jury  that  there  hail 
been  an  acceptance  and  actual  receipt  of 
the  goods  to  sustain  the  alk^ed  contract. 
2  16  M.  &  W.  119  ;  fully  stated,  avXe, 
366. 


456  COMMENTARIES   ON    SALES.  [bOOK   IV. 

for  several  months,  and,  notwithstanding  repeated  applications, 
did  not  pay  the  price  of  or  charges  upon  the  goods,  nor  return  the 
warrant,  which  he  said  he  had  sent  to  his  solicitor ;  and  that  he 
intended  to  resist  payment,  as  he  had  not  ordered  the  goods ;  and 
that  they  would  remain  for  the  present  in  bond.  In  an  action  for 
the  price,  the  jury  having  found  for  the  plaintiff,  the  court  held, 
that  there  was  evidence  to  go  to  the  jury  of  the  defendant's  accept- 
ance of  the  goods  by  retaining  the  delivery  warrant ;  but  that 
there  was  no  sufficient  evidence  of  the  actual  receipt  of  the  goods, 
that  is,  of  the  delivery  of  the  possession  of  the  goods  on  behalf 
of  the  vendor  to  the  vendee,  and  the  receipt  of  the  possession  by 
the  vendee ;  and  that  the  delivery  and  receipt  of  the  warrant  was 
not  in  effect  the  same  thing  as  the  delivery  and  receipt  of  the 
goods.  ^ 

There  was  an  actual  receipt  of  goods  by  the  vendee,  in  Walker 
V.  Nussey,^  but  as  they  were  returned  within  a  reasonable  time  as 
not  being  according  to  sample,  it  was  held  that  there  was  no  ac- 
ceptance of  them,  notwithstanding  tlieir  actual  receipt. 

In  Curtis  v.  Pugh,^  there  was  a  purchase  of  Cox's  best  glue,  the 
vendee  subsequently  receiving  the  glue,  which  the  jury  found  was 
what  he  had  purchased.  The  court  held  that,  notwithstanding 
the  actual  receipt,  the  vendee  had  still  the  right  of  rejecting  the 
glue.  This  is  a  perfectly  clear  principle  :  where  there  is  no  ac- 
ceptance of  the  goods,  they  may  clearly  be  rejected  after  their  re- 
ceipt, with  or  without  reason,  if  there  are  no  laches,  or  taking  to 
the  goods,  on  the  part  of  the  vendee.  But  the  case  here  comes 
very  close  to  that  of  the  purchase  of  specific,  ascertained  goods,  or 
the  purchase  of  goods  by  sample,  which  the  vendee  may,  notwith- 
standing the  purchase,  refuse  to  receive ;  but  which,  having  re- 
ceived, as  the  purchase  of  specific  goods  is  itself  an  acceptance  of 
them,  so  far  as  he  gets  the  identical  goods  he  has  bought,  it 
would  seem  that  that  in  itself  is  an  acceptance  of  them  within  the 
meaning  of  the  statute  ;  and  that,  after  his  receipt  of  them,  his 
right  of  rejecting  them  would  be  gone,  if  the  jury  found  that  they 
were  the  identical  goods  which  he  had  bought,  and  agreed  to  ac- 
cept as  the  subject  of  the  purchase,  as  they  did  in  Curtis  v. 
Pugh.4 

1  Aud  see  Bentall  v.  Burn,  3  B.  &  C.  Searle  v.  Keeves,   2  Esp.   598.     See  also 

423  ;    Bill  v.    Bament,   9  M.    &   W.   36  ;  Zwinger  v.  Samuda,  7  Taunt.  265  ;  Hurry 

Hanson  v.   Armitage,  5  B.  &  Aid.  557  ;  v.    Mangles,    1    Camp.    4.52  :    Harman   v. 

Howe  V.   Palmer,  3  B.  &  Aid.  321.     But  Anderson,  2  Camp.  243  ;  Caldwell  v.  Ball, 

where  the  vendee  has  acted  under  the  de-  1  T.  R.  205,  216. 

livery  order,  so  that  the  goods,  although  2  ig  m.  '&  W."  302. 

remaining  in   the  warehouse,   have   been  8  jq  q,  g^  ^^  stated  supra,  371. 

transferred  to  the  vendee,  that  is  a  suffi-  4  /jj^f. 
cient  actual  receipt  to  satisfy  the  statute. 


I 


PART   VII.]  THE   ACTUAL   RECEIPT.  457 

We  have  discussed  this  point  very  fully  in  our  next  preceding 
Part.  Lord  Denman,  C.  J.,  would  seem  to  have  apprehended  this 
point  in  Curtis  v.  Pugh,^  where  he  says  :  "  Tlie  strongest  way  of 
putting  the  case  would  be  that  the  vendee's  conduct  amounted  to 
a  provisional  acceptance  if  the  glue  should  prove  to  be  Cox's  best 
glue  ;  "  i.  e.,  that  after  the  actual  receipt  of  it  he  could  not  reject 
it,  if  it  was  the  very  subject  which  he  had  bought,  and  which  the 
jury  found  that  it  was,  viz.,  Cox's  best  glue.  Of  course,  before  the 
appropriation  of  it  to  him  by  the  seller,  he  could  not  maintain  trover 
for  it,  as  it  would  require  the  actual  receipt,  also,  to  make  the  con- 
tract good.  But,  neither  could  he  do  so  where  the  sale  was  by 
sample,  whether  the  sample  was  or  was  not  delivered  to  him  as  a 
part  of  the  very  bulk  of  the  goods.  Yet,  though  trover  would  not 
lie  in  either  of  these  cases,  there  would  seem  in  all  of  them  to  be 
good  reason  for  holding  that  if,  after  receipt  of  them,  they  proved 
to  be  the  identical  goods  which  were  bought,  the  vendee's  right  of 
rejection  would  be  gone.  The  reader  is  referred  to  our  very  full 
consideration  of  this  subject  in  our  next  preceding  Part.^ 

In  Saunders  v.  Topp,^  on  selection  of  sheep,  which  the  defend- 
ant purchased,  he  directed  them  to  be  sent  to  a  field  of  his,  which 
was  done.  Two  days  afterwards  he  sent  his  shepherd  to  remove 
the  sheep  to  his  farm,  from  the  field,  and  on  their  arrival  he 
counted  them,  and  said,  "  It  is  all  right."  This  was  held  to  be  a 
sufficient  actual  receipt  of  the  sheep,  where  the  acceptance  pre- 
ceded the  receipt,  or  was  concurrent  with  it. 

In  Morton  v.  Tibbett,*  the  vendee  not  only  received  a  bulk 
sample  of  the  wheat  he  purchased  ;  but  he  seems  to  have  received, 
by  his  own  carrier,  the  residue  of  the  wheat,  which  was  so  effect- 
ually in  his  possession,  that  he  sold  it  and  changed  its  destina- 
tion. This  was  a  clear  actual  receipt,  even  though,  had  he  not 
exercised  ownership  of  it  by  selling  it,  thereby  signifying  his  ac- 
ceptance of  it,  he  might  have  rejected  it,  if  on  timely  examination 
of  it  he  had  found  that  it  did  not  accord  with  the  sample,  and  was 
not,  therefore,  the  wheat  which  he  had  bought,  and  which  he 
should  have  received.  But  where  the  vendee  has  actually  re- 
ceived the  goods,  it  is  a  question  for  the  jury  whether  his  subse- 
quent dealing  with  them  is  or  is  not  an  acceptance  of  them. 
Tiius,  where  the  vendee  bought  a  quantity  of  turnip-seed,  and  after 
receipt  of  it,  spread  it  out  thin,  it  was  held  to  be  a  question  for 

1  At  p.  114.  Montague,  10  C.  B.  481  ;  Kibble  v.  Goiigh, 

2  Sec  our  full  examination  there  of  38  L.  T.  N.  s.  204  ;  Rickard  v.  Moore,  38 
Saunders  v.  Tojip,  4  Ex.  390  ;  Morton  v.  L.  T.  n.  8.  84  ;  Page  v.  Morgan,  15  Q.  B. 
Tibbett,  1.5  Q.  B.  428  ;  Parker  v.  Wallis,  Div.  228. 

5   E.  &  B.   21  ;    Nicholson  v.   Bovver,    1  »  4  Ex.  390. 

E.    &    E.    172;    Cusack   v.    Robinson,    1  *  15  Q.  B.  428. 

B.  &  S.  299  ;  The  Boa'  Lead  Minin"  Co.  v. 


458  COMMENTARIES    ON   SALES.  [BOOK   IV. 

the  jury,  under  the  facts,  whether  this  was  done  as  an  act  of  ac- 
ceptance, or  for  the  purpose  of  preserving  it  for  the  vendor.^ 

Where  wheat,  which  was  purchased  by  verbal  contract,  was 
sent  by  railway,  and,  on  reaching  the  terminus,  was  warehoused 
in  the  name  of  the  vendee,  notice  being  duly  given  to  him  thereof ; 
this,  as  it  puts  an  end  to  the  right  of  stoppage  in  transitu,  is  an 
actual  receipt  to  satisfy  the  statute,  even  though  the  vendee 
should  still  have  the  right  of  rejecting  the  wheat  as  not  being  the 
goods  he  purchased.^  And  where  the  goods  purchased  were  sent 
to  a  warehouse  named  by  the  vendee,  where  they  were  put  under 
the  control  of  the  vendee  to  await  his  further  directions,  so  as  to 
put  an  end  to  all  the  rights  of  the  sellers  as  the  unpaid  vendors, 
there  was  a  sufficient  actual  receipt  to  satisfy  the  statute.^ 

But  in  Hart  v.  Bush,*  where  the  defendant  at  Lancaster  ver- 
bally ordered  goods  of  the  value  of  more  than  <£10,  to  be  sent  to 
him  at  Lancaster  from  London  by  plaintiff,  and  he  directed  that 
the  goods  should  be  sent  by  sea  from  G.'s  wharf,  which  was  the 
only  wharf  in  London  whence  goods  were  shipped  for  Lancaster ; 
and  from  which  wharf  goods  had  previously  been  sent  by  plaintiff 
to  defendant.  Plaintiff  sent  the  goods  to  G.'s  wharf ;  whence  the 
wharfinger  sent  them  by  a  ship,  selected  by  himself,  for  Liver- 
pool ;  but  the  cargo  was  lost  by  the  ship  being  wrecked  on  her 
voyage  from  London  to  Liverpool.  It  was  held  that  this  was  not 
actual  receipt  to  satisfy  the  statute  ;  Lord  Campbell,  C.  J.,  saying  : 

1  Parker  v.  Wallis,  5  E.  &  B.  21.  diately  returned  b)'  P.'s  orders  ;  and  the 

2  Nicholson  V.  Bower,  1  E.  &  E.  172.  whole  eight  were  sent  back  by  him  to  S. 
But  where,  in  Bolton  v.  The  Lancashire,  station  to  the  order  of  W.  They  were 
&c.  Ry.  Co.,  L.  R.  1  C.  P.  431,  on  the  ar-  again  returned  by  W.  to  B.  station  ;  but 
rival  of  the  goods  at  the  terminus  of  the  P.  refusing  to  have  anything  to  do  with 
route,  the  vendee  refused  to  receive  the  them,  they  remained  there  until  P.'s  bank- 
goods,  which  remained  in  the  possession  of  ruptcy  on  Oct.  19,  when  W.  claimed  them, 
the  carrier,  it  was  held  that  the  transitus  It  was  held,  upon  a  special  case  stated  in 
had  not  ended.  There,  on  July  12,  1864,  an  action  of  trover  by  P.'s  assignee  against 
"VV.  sold  P.  eleven  skips  of  cotton  twist,  the  railway  company,  in  which  the  court 
then  lying  at  the  defendant's  station  atS.,  were  to  draw  inferences  of  fact,  that,  un- 
to be  delivered  for  P.  at  B.  station.  Three  der  the  circumstances,  the  traiisitiis  was 
of  the  skips  were  delivered  on  the  22d  never  determined,  and  consequently,  that 
and  paid  for;  but  P.,  objecting  to  the  the  unpaid  vendor,  W.,  had  a  right  to  stop 
weight  and  quality,  declined  to  take  any  them.  In  James  v.  Griffin,  2  M.  &  W. 
more  of  them.  On  Aug.  17,  four  more  were  623,  an  intimation  from  the  vendee  that 
sent  to  B.  station,  and  an  invoice  of  the  he  did  not  intend  to  accept  the  goods, 
eight  was  sent  to  P.,  with  an  intimation  to  though  they  were  delivered  at  a  wharf 
him  that  four  had  been  forwarded,  and  where  he  had  been  accustomed  to  have 
that  the  remaining  four  were  lying  at  S.  goods  landed  for  him,  was  held  to  keep 
station,  waiting  his  instructions.  P.  im-  alive  the  vendor's  right  of  stoppage  in  tran- 
mediately  returned  the  invoice,  and  wrote  situ.  .See  Whitehead  v.  Anderson,  9  M. 
to  W.,  saying  that  he  declined  to  take  any  &  W.  529  ;  Wentworth  v.  Outhwaite,  10 
more  of  the  twist.  On  Sept.  1,  W.  sent  M.  &  W.  436  ;  Morgan  v.  Gath,  3  H.  &  C. 
an  order  to  S.  station,  directing  the  de-  748  ;  Dodson  v.  Wentworth,  .5  Scott,  N.  R. 
fendants  to  deliver  the  remaining  four  821  ;  Cusack  v.  Robinson,  1  B.  &  S.  299  ; 
skips  to  P.  These  were  accordingly  for-  Smith  v.  Hudson,  34  L.  J.  Q.  B.  14.5. 
warded  to  B.  station,  and  were  taken  by  ^  Cusack  v.  Robinson,  1  B.  &  S.  299. 
P.'s  car-man  to  his  mill,  but  were  imme-          *  E.  B.  &  E.  494. 


PART    VII.]  THE    ACTUAL    RECEIPT.  459 

"All  that  can  be  said  is  that  the  purchaser  here  named  the 
wharf,  and  that  there  was  a  delivery  at  that  wharf.  I  think  that, 
where  there  is  a  verbal  contract  and  an  order  to  deliver  to  a  par- 
ticular carrier,  a  delivery  to  that  carrier  does  satisfy  the  statute. 
But  in  the  present  case  there  was  a  delivery  at  the  wharf  only  ; 
the  wharfinger  had  only  to  see  that  the  goods  were  properly  put 
on  the  wharf  and  hoisted  on  board  ship."  And  where  the  ship  was 
selected  by  the  vendor  in  which  the  goods  were  shipped,  the  goods 
being  consigned  to  a  third  party,  who  notified  the  vendee  thereof, 
this  was  no  actual  receipt  by  the  vendee,  nor  would  it  have  been 
had  the  bill  of  lading  been  sent  direct  to  him,  as  the  right  of 
stoppage  in  transitu  would  still  continue ;  unless  he  assigned  the 
bill  of  lading,  in  which  case  there  would  be  a  constructive  receipt 
of  the  goods  to  satisfy  the  actual  receipt  of  the  statute.^ 

Kibble  V.  Gough,^  which,  on  the  question  of  acceptance,  we  have 
considered  very  fully  in  the  next  preceding  Part,  is,  with  the  cases 
which  have  followed  it  and  recognized  its  correctness,  a  case  of 
the  highest  importance  on  this  branch  of  the  Statute  of  Frauds. 
It  was  an  appeal  from  the  decision  of  the  Common  Pleas  Division. 
The  defendant,  a  maltster,  agreed  to  purchase  of  the  plaintiff,  a 
farmer,  a  quantity  of  barley,  a  sample  of  which  was  produced, 
but  which  Avas  not  dressed,  at  35.s.  a  quarter,  on  condition  that  it 
should  be  well  dressed.  The  plaintiff  promised  that  it  should  be 
dressed  as  well  as  machine  could  do  it.  A  few  days  afterwards 
the  plaintiff  sent  to  the  defendant  for  some  sacks  in  which  to  send 
the  barley,  and  a  quantity  was  sent  to  him  in  the  absence  of  the 
defendant  by  the  defendant's  foreman.  On  the  same  day  the 
plaintiff  sent  in  the  first  instalment  of  barley,  thirteen  quarters, 
which  were  received  by  the  defendant's  foreman,  who  examined 
the  barley,  and  who  returned  a  receipt  with  the  words  "  not  equal 
to  sample."  The  defendant  returned  home  late  in  the  evening, 
and  was  informed  of  the  delivery  of  the  barley,  and  on  the  follow- 
ing morning  inspected  the  barley  and  wrote  to  the  plaintiff  in  the 
following  terms  :  "  I  must  refuse  the  barley,  and  do  not  send  any 
more.  It  is  full  of  grown  corns  and  very  spikey,  and  a  lot  of 
thin,  and  is  not  dressed  as  well  as  machine  can  do  it,"  The 
plaintiff,  however,  sent  a  second  instalment,  and  also  a  third, 
which  were  also  received,  in  the  absence  of  the  defendant,  by  his 
foreman,  and  received  a  receipt  for  each,  with  the  words  "not 
dressed  well "  for  the  second  instalment,  and  "  not  equal  to  sam- 
ple "  for  the  third.  The  defendant  wrote  to  the  plaintiff  and 
asked  him  to  take  back  the  barley,  but  the  plaintiff  refused  to'do 
so.    The  defendant  refused  to  pay  for  the  barley,  and  wrote  to  the 

1  Meredith  v.  Meig,  2  E.  &  B.  364.  ^  33  l.  T.  n.  s.  204. 


460  COMMENTARIES    ON   SALES.  [BOOK   IV. 

plaintiff  that  it  was  standing  in  the  defendant's  warehouse,  at  the 
phiintiff's  risk,  and  subject  to  hire  for  warehousing,  etc.  In  an 
action  for  the  price,  as  for  goods  sold  and  delivered,  the  jury 
found  that  the  statute  had  been  complied  with,  and  that  the  barley 
was  equal  to  sample  and  well  dressed. 

On  motion,  before  the  Common  Pleas  Division,  for  a  new  trial, 
the  verdict  was  sustained.  On  appeal,  to  the  Court  of  Appeal, 
the  appeal  was  dismissed. 

Here,  the  actual  receipt  was  evident ;  but,  after  the  actual  re- 
ceipt, the  rejection  of  the  goods  was  as  decided  as  it  well  could 
be.  As  we  have  pointed  out  in  the  previous  Part,  the  only  pos- 
sible ground  upon  which  this  case  is  sustainable,  is,  that,  as  a 
purchase  of  specific  goods  by  sample,  the  purchase  itself  was  an 
acceptance,  an  approval,  a  recognizing,  a  taking  to  as  the  subject 
of  the  contract,  of  the  specific  goods  bought,  and  which,  after 
their  actual  receipt,  could  not  be  rejected,  if  they  accorded  with 
the  sample,  and  were,  as  the  jury  in  this  case  found  they  were, 
the  very  goods  which  were  purchased.  But  for  the  introduction 
in  the  case  of  Lord  Campbell's  utterly  unsound  obiter  dictum  in 
Morton  v.  Tibbett,i  that,  in  effect,  there  can,  under  the  Statute  of 
Frauds,  be  an  acceptance  which  is  not  an  acceptance,  but  which 
may  be  followed  by  a  rejection,  the  decision  would  be  clearer,  as, 
in  so  many  of  the  English  cases,  they  would  be  much  more  intel- 
ligible than  they  are  but  for  their  confounding,  as  they  do  in  fact, 
in  Kibble  v.  Gough,^  the  acceptance  and  the  actual  receipt  of  the 
statute,  as  though  accepting  meant  no  more  than  receiving,  and 
was  always  necessarily  involved  in  it.^ 

As  we  have  fully  pointed  out  in  our  last  preceding  Part,  there 
may  be  an  acceptance  of  goods,  and  a  refusal  to  receive  them,  as 
there  might  have  been  in  either  Cusack  v.  Robinson,*  Saunders  v. 
Topp,^  or  Kibble  v.  Gough.^  And,  on  the  other  hand,  there  may 
be  an  actual  receipt,  as  in  Rickard  v.  Moore ,'^  and  as  in  many  of 

1  15  Q.  B.  428.  may  be,  exclusive  of  the  actual  receipt,  an 

2  38  L.  T.  N.  s.  204.  acceptance,  preceding  the   actual  receipt, 

3  See,  for  instance,  per  Brett,  J.  :  as  in  Cusack  v.  Robinson,  1  B.  &  S.  299, 
"Does  not  the  deliver)-  and  receipt  in-  where  there  has  been  a  purchase  of  specific, 
elude  acceptance?"  Most  certainly  it  ascertained  goods;  or,  as  in  Kibble  v. 
does  not.  There  may  be  a  delivery  and  Gough  itself,  where  there  has  been  a  sale 
receipt,  which  may  not  only  not  include  an  by  sample  of  specific  goods,  and,  on  the 
acceptance,  within  the  meaning  of  the  subsequent  actual  receipt,  they  shall  be 
statute,  but  there  may  be  a  rejection  of  found  to  be  the  identical  goods  purchased  ; 
the  goods,  as  in  the  next  case  we  state,  —  approved,  recognized,  adopted,  accepted, 
Rickard  v.  Moore,  38  L.  T.  N.  s.  841,  —  taken  to  as  the  very  subject  of  the  con- 
which  there  could  not  be  if  there  had  been,  tract. 

with  the  actual  receipt,  an  acceptance,  as  *  1  B.  &  S.  299. 

there  would  then  be  an  executed  contract  *  4  Ex.  390. 

"deemed  good,"  and  which  could  not  be  ^  33  l.  T.  x.  s.  204. 

rescinded  merely  at  the  will  of  one  of  the  ^  lb.  841. 
parties.     Or,    on   the   other  hand,    there 


PART   VII.]  THE   ACTUAL   RECEIPT.  461 

the  cases  cited  in  this  and  in  the  preceding  Part ;  and  yet,  instead 
of  an  acceptance  of  them,  an  absolute  rejection  of  the  goods. 
This  may  be  where  there  has  been  a  purchase,  but  neither  by 
sample,  or  otlierwise,  of  specific  goods,  and  the  goods,  on  receipt, 
may  be  refused  acceptance  ;  or,  it  may  be,  where,  by  purchase  by 
sample,  or  otherwise,  there  has  been  a  purchase  of  specific  goods, 
and,  on  receipt,  it  shall  have  been  found  that  the  goods  are  not 
the  specific  goods  purchased ;  in  the  one  case,  not  being  a  part  of 
the  designated  goods  purchased,  and,  in  the  other,  not  accord- 
ing to  the  sample ;  so  as,  in  neither  case,  to  be  a  part  of  the 
approved,  accepted,  recognized  goods  as  the  very  subject  of  the 
contract. 

But,  in  this  is  not  involved  the  accepting,  and  also  its  exact 
opposite,  the  rejecting  of  the  same  goods.  The  receiving  is  not 
the  accepting.  The  rejecting  is  not  the  refusal  to  receive,  but  it 
is  the  refusal  to  accept.  There  may  be  the  right  to  accept  or  the 
right  to  reject,  but  there  cannot  be  both  an  acceptance  and  a  re- 
jection of  the  same  subject,  although  there  may  be  a  receipt, 
which,  where  there  has  been  no  preceding  or  concurring  accept- 
ance, may  be  followed  by  either  an  acceptance  or  a  rejection,  but 
not  by  both.  Clearly,  there  cannot  be  an  acceptance  and  a  rejec- 
tion both  of  the  same  subject'  within  the  meaning  of  the  Statute 
of  Frauds.  All,  in  fact,  that  Kibble  v.  Gough  ^  holds  is,  that  the 
goods  were  actually  received ;  that  they  were  specific  goods  pur- 
chased by  sample,  which  was  itself  an  acceptance  of  tliem ;  and 
that,  therefore,  on  their  actual  receipt,  they  could  not  be  rejected, 
if  they  accorded  with  the  sample,  and  were,  therefore,  the  very 
goods  which  were  purchased,  approved,  agreed  upon,  identified, 
recognised,  taken  to,  accepted,  as  the  very  subject  of  the  contract 
between  the  parties ;  and,  therefore,  the  requirements  of  the  stat- 
ute of  an  acceptance  and  an  actual  receipt  having  been  met,  the 
contract  was  to  be  "  deemed  good,"  and  the  goods  could  not  there- 
after be  rejected,  and  the  contract  rescinded,  simply  at  the  will  of 
one  of  the  parties.  But,  on  the  other  hand,  notwithstanding  the 
contract,  but  in  virtue  thereof,  after  the  actual  receipt,  if  the  goods 
were  not  the  specific  goods  which  were  bought,  whether  by  sam- 
ple or  otherwise,  they  could  be  rejected,  because  they  had  never 
been  accepted,  and,  like  any  other  unaccepted  goods,  could  still 
be  rejected,  notwithstanding  the  actual  receipt,  because  the  statute 
requires  that  they  shall  be  as  well  accepted  as  actually  received. 

We  dwell  on  this  subject  because  of  its  importance  ;  and  because 
even  in  this  late  and  important  case,  which  we  think  is  undoubt- 
edly well  decided,  although  (and  from   the  fallacious  reasoning 

1  33  L.  T.  N.  s.  204. 


462 


COMMENTARIES   ON   SALES. 


[book  IV. 


with  which  it  abounds  it  is  not  at  all  a  matter  of  surprise  that  he 
should  have  done  so)  we  find  Bramwell,  L.  J.,  who  was  one  of 
the  judges  who  decided  Kibble  v.  Gough,i  throwing  doubt  in  Rick- 
ard  V.  Moore  2  on  his  own  decision  in  Kibble  v.  Gough  ;  jet  it  fairly 
abounds  in  fallacies,  —  not  only  approving  the  utterly  unsound 
obiter  dictum  of  Lord  Campbell  in  Morton  v.  Tibbett,^  that,  in 
effect,  there  can  be,  under  the  statute,  both  the  acceptance  and 
tlie  rejection  of  the  same  goods,  but  (not  seeming  to  comprehend 
the  difference  between  the  rejecting  goods  which  have  not  been 
accepted  and  the  contradiction  involved  in  both  accepting  and 
rejecting  the  same  goods)  stating  principles  which  are  entirely 
unsound.  The  decision  in  Kibble  v.  Gough  we  think  entirely 
sound,  and  the  case,  on  that  account,  a  most  valuable  one. 
We  think  much  of  the  reasoning  in  it  is  grossly  unsound,  and 
calculated  to  perpetuate  error.^ 


1  38  L.  T.  N.  s.  204. 

2  Id.  841. 

3  15  Q.  B.  428. 

*  We  have  not  only  the  fallacy  of  Brett, 
L.  J.,  referred  to  in  our  note,  ante,  p.  460,  of 
confounding  acceptance  with  receipt,  but 
the  great  mass  of  his  judgment  is  based  on 
the  palpable  contradiction  that  there  can 
be  an  acceptance  and  a  rejection,  under  the 
statute,  of  the  same  goods.  In  the  first 
part  of  his  judgment,  Brett,  L.  J.,  states, 
not  with  absolute  accuracy,  but  with  not 
much  incorrectness,  the  right  of  the  ven- 
dee to  reject  goods  after  their  receipt, 
which  have  been  bought  by  sample,  and 
which  do  not  conform  to  the  sample.  He 
proceeds  :  "  Thei'e  must  be  an  acceptance 
and  an  actual  receipt  ;  no  absolute  accept- 
ance, but  an  acceptance  which  could  not 
have  been  made  except  on  admission  of  the 
contract  and  the  goods  sent  under  it.  I 
am  of  opinion  that  there  was  a  sufficient 
acceptance  under  the  statute  of  frauds,  al- 
though t/iere  is  apoiver  of  rejection.  That 
seems  to  me  to  be  the  decision  in  Morton 
V.  Tibbett,  15  Q.  B.  428,  and  in  Cusack  v. 
Robinson,  1  B.  &  S.  299."  It  is  difficult 
here  to  understand  what  Brett,  L.  J. 
means,  because  Cusack  v.  Robinson  holds 
that  there  was  an  acceptance,  and  no 
power  of  rejection,  —  a  power  to  refuse  to 
receive,  but  no  power  to  not  acceyt,  or  to 
reject ;  there  having  been  an  acceptance, 
which,  however,  might  have  been  followed 
by  a  refusal  to  receive.  As  Brett,  L.  J., 
had,  however,  previously  confounded  ac- 
cepting with  receiving,  he  may  be  further 
confounding  rejecting  with  the  refusal  to 
receive,  treating  it  rather  as  the  converse 
of  the  actual  receipt  of  the  statute,  than  of 
the  accepting  which  is  also  required. 
Taking  his  judgment,  however,  as  a  whole, 
it  is  difficult  to  make  any  sense  of  it.     He 


proceeds:  "Blackbnni,  J.,  cites  Morton 
V.  Tibbett  with  approbation.  But  the 
most  remarkable  approbation  of  Morton  v. 
Tibbett,  is  by  Crompton,  J.,  in  Currie  v. 
Anderson  (29  L.  J.  X.  s.  87  Q.  B.),  when 
citing  from  Lord  Campbell's  judgment : 
'  After  a  careful  review  of  the  cases,  the 
court  came  to  the  conclusion  (which  in 
this  court  must  be  considered  the  law  of 
the  land)  that  in  order  to  make  an  accept- 
ance and  receipt  within  the  statute  of 
frauds,  it  was  not  necessary  that  the  ven- 
dee should  have  done  anything  to  preclude 
himself  from  objecting  to  the  goods.' 
That  was  the  decision  in  Morton  v.  Tib- 
bett [In  Morton  v.  Tibbett,  as  we  have 
shown,  ante,  p.  376  et  seg'.,  there  were  a  re- 
ceipt and  an  acceptance  of  bulk  samples,  a 
part  of  the  goods  ;  and  there  was  an  actual 
receipt  of  the  residue,  and  such  a  dealing 
therewith,  a  taking  thereto,  as  owner,  by 
a  sale  and  change  of  destination,  as  implied 
an  acceptance  ;  and  it  was  held  that  the 
vendee  was  thereafter  bound  by  his  con- 
tract, which,  under  the  statute,  was  to  be 
"deemed  good,"  and  that,  thereafter,  he 
had  no  power  of  rejection  within  the  mean- 
ing of  the  statute] ;  and  from  the  discussion 
of  to-day,  I  see  reason  to  be  more  satisfied 
than  ever  with  it.  Having  considered  all 
these  cases,  I  think  the  decision  in  Morton 
V.  Tibbett  is  right,  and  that  such  an  ac- 
ceptance is  sufficient,  .although  the  pur- 
chaser in  certain  cases  [namely,  where 
there  has  been  no  acceptance,  notwith- 
standing the  actual  receipt]  may  still 
have  his  right  of  rejection.  Here  there 
was  [siV]  sufficient  receipt  and  acceptance 
[here,  apparently,  rather  using  these  words 
as  the  equivalent  of  delivery  and  receipt] 
to  pass  the  propert}',  and  there  was  a 
binding  contract  [then,  clearlj',  there 
were  the  acceptance  and  actual  receipt  of 


PART   VII.] 


THE   ACTUAL   RECEIPT. 


463 


Our  reasoning  is  also  sustained  by  the  next  succeeding  case  of 
Rickard  v.  Moore. ^    In  this  case  there  was  a  sale  to  the  defend- 


the  statute,  and  that  ended  it.  The  con- 
tract was  then  to  be  "deemed  good  "]  ;  and 
the  question  is,  can  an  action  be  main- 
tained for  the  price  of  the  goods.  Now, 
the  first  lot  was  actually  delivered,  and  I 
shall  use  the  term,  actually  received. 
[From  which,  evidently,  he  implies  that 
which  he  ignores,  actual  acceptance. '\  The 
goods  were  sold  by  valid  contract  [itself 
an  acceptance],  actually  delivered  and 
received,  and  after  this  the  vendee  objects 
to  them  [as  clearly  he  might,  if,  by  the 
very  sale  of  these  specific  goods  by  sample, 
he  had  not  already,  within  the  meaning 
of  the  statute,  and  of  the  term  at  com- 
mon law,  already  "accepted"  them].  If 
they  had  not  been  equal  to  the  sample,  I 
say  that  it  was  not  even  then  too  late  to 
object  ;  but  they  were  equal  to  sample, 
and  they  were  dressed.  Now,  where  by  a 
contract  under  which  thei'e  is  a  right  to 
reject,  and  there  has  been  an  actual  deliv- 
ery and  an  actual  receipt,  and  the  state  of 
the  goods  is  such  as  to  give  no  right  to  re- 
ject, any  attempt  to  reject  them  without 
such  right  is  futile,  and  the  goods  are 
goods  not  only  sold,  but  sold  and  deliv- 
ered ;  and  this,  I  think,  is  the  case  here." 

All  this,  making  allowance  for  the  con- 
fusion of  Brett,  L.  J.,  with  reference  to  the 
essentially  different  things  of  the  accept- 
ance and  the  actual  receipt  of  the  statute, 
might  be  construed  to  mean,  and  if  so, 
would  be  entirely  correct,  that  where  there 
has  been  a  receipt  and  no  acceptance,  there 
there  may  be  a  rejection.  This  will  help 
to  clear  up  the  confusion.  Thus,  where 
there  have  been  an  acceptance  and  actual 
receipt,  there  there  can  be  no  rejection. 
But  where  there  has  been  an  actual  receipt, 
and  no  acceptance,  there  there  may  be  a 
rejection.  This,  unquestionably,  is  the 
clear  law  of  the  statute.  And,  after  the 
acceptance  and  actual  receipt  of  the  stat- 
ute making  the  contract  to  be  "  deemed 
good  ; "  and,  dehors  fraud,  preventing  its 
rescission  or  the  subsequent  rejection  of 
the  goods,  at  the  will  of  one  of  the  parties 
to  the  contract,  yet  the  vendee,  as  at  com- 
mon law,  would  have  his  rights  and  reme- 
dies as  to  any  express  or  implied  warranty 
connected  with  the  sale  of  the  goods  which 
had  been  accepted  and  actually  received. 

Bramwell,  L.  J.,  and  Cotton,  L.  J.,  are 
as  unsound.  The  latter  says  :  "  Is  there 
a  contract  under  the  statute  of  frauds  ? 
It  is  an  undouVjted  fact  that  there  is  here  a 
verbal  contract,  but  there  must  also  be  an 
acceptance  and  a  receipt.  There  is  cer- 
tainly a  receipt  here,  but  is  there  an  ac- 


ceptance ?  I  quite  agree  with  the  princi- 
ples laid  down  in  Morton  v.  Tibbett,  15 
Q.  B.  428.  The  object  of  the  statute  is 
that,  where  there  was  no  contract  in  writ- 
ing, there  must  be  some  overt  act  to  ren- 
der the  bargain  binding.  The  court  will 
look  at  parol  evidence  of  a  contract  when 
the  statute  is  satisfied.  All  that  is  wanted 
is  a  receipt,  and  such  an  acceptance  of  the 
goods  as  shows  that  it  has  regard  to  the 
contract,  but  the  contract  may  yet  be  left 
open  to  objection  ;  so  that  it  would  not 
preclude  a  man  from  exercising  such  a 
power  of  rejection  ; "  i.  e.  there  could  be 
an  acceptance,  and  at  the  same  time  its 
exact  opposite,  a  refusal  to  accept,  — a 
rejection  ! 

So  Bramwell,  L.  J.  :  "A  man  may  ac- 
cept goods  [had  he  here  said  receive  goods, 
instead  of  accept,  this  part  of  his  judgment 
at  least,  would  have  been  quite  accurate] 
without  losing  his  right  of  objection  to 
them  ;  there  must  be  such  an  accej)tance 
to  satisfy  the  statute  as  amounts  to  a  recog- 
nition of  the  contract  between  the  parties  ; 
and  I  can  quite  understand  that  there  may 
be  a  delivery  without  an  acceptance  by  the 
vendee,  and  without  a  recognition  on  his 
part  that  he  has  bought  the  goods."  Sub- 
stituting, as  we  have  suggested  "  receive  " 
for  "  accept  "  in  the  above,  and  all  the  er- 
ror is  eliminated  from  the  paragraph. 

The  following,  then,  are  perfect!}'  sound 
propositions  :  First.  A  man  may  receive 
goods  without  losing  his  right  of  objecting 
to  them.  Second.  An  acceptance  is  a  rec- 
ognition, an  acknowledging,  an  approving, 
a  taking  to  as  the  very  subject  of  the  eon- 
tract,  of  the  goods  which  have  been  pur- 
chased under  the  verbal  contract.  And 
therefore,  Thirdly :  There  may  be  a  deliv- 
ery without  an  acceptance  by  the  vendee, 
and  without  a  recognition  (an  acknowl- 
edging, approving,  accepting),  on  his  part 
that  he  has  bought  the  goods.  To  which 
we  may  add,  Fourthly  :  And  hence,  where 
there  has  been  but  a  receipt,  and  no  accept- 
ance, prior,  concurrent  with,  or  following 
the  actual  receipt,  and  no  dealing  with  the 
goods  by  the  vendee,  or  laches  on  his  part, 
from  which  an  acceptance  may  be  implied, 
the  goods  may  be  rejected,  as  they  may  be 
if  (having  been  bought  by  sample,  or  being 
specific  good.s,  they  have  thus  been  recog- 
nized, ap[)roved,  accepted,  as  the  subject  of 
the  contract)  after  their  receipt  shall  have 
proved  not  to  be  the  specific  goods  pur- 
chased or  not  to  conform  to  the  sample. 

These  propo.sitions  are  amply  sustained 
by  the  actual  holding  in  Kibble  v.  Gough, 


1  38  L.  T.  X.  s.  841. 


464 


COMMENTARIES   ON   SALES. 


[book  IV. 


ant  by  sample,  in  July,  of  six  bales  of  wool.  On  the  27tli  the 
defendant  received  an  invoice  of  the  wool,  which,  shortly  after, 
arrived  at  the  railway  station  at  the  defendant's  place  of  business. 
On  the  31st  he  removed  it  from  the  station  to  his  own  premises, 
where  he  examined  it,  and  found  it  inferior  to  sample,  and  imme- 
diately wrote  the  plaintiff  (the  vendor)  to  that  effect.  The  plain- 
tiff answered  by  letter  on  the  1st  of  August,  claiming  that  the 
wool  was  equal  to  the  sample,  —  the  letter  arriving  at  its  destina- 
tion in  the  defendant's  absence.  On  his  return  on  the  4th,  he 
submitted  the  wool  to  further  inspection,  and  finding  his  previous 
view  confirmed,  returned  the  wool  to  the  railway  station,  and 
advised  the  plaintiff  that  he  refused  to  accept  it.  There  was  also 
some  evidence  that,  between  the  31st  July  and  the  4th  August, 
the  defendant  had  offered  the  wool  for  sale.  In  an  action  for  the 
price  the  statute  was  relied  on.  The  jury  found  that  the  goods 
were  not  equal  to  sample,  and  the  verdict  and  judgment  were  for 
the  defendant.     On  appeal,  Kibble  v.  Gough  ^  was  relied  on  ;  and 


38  L.  T.  N.  s.  204,  and  the  following 
further  from  Bi-amwell,  L.  J.,  is  only  cor- 
rect so  far  as  it  accords  with  the  above 
propositions,  and  with  the  comments  in 
the  two  paragraphs  immediately  preceding 
this:  "But  in  this  case  the  goods  had 
been  brought  to  the  defendant's  warehouse, 
and  were  received,  not  by  the  defendant 
himself,  but  by  a  person  in  whom,  as  the 
evidence  showed,  he  put  trust  and  confi- 
dence, and  this  person  compared  the  barley 
with  the  sample  and  took  it  in.  There  is 
no  doubt  whatever  that  he  received  it. 
Suppose  that  the  defendant  himself  liad 
been  present,  the  question  would  be  just 
the  same,  and  it  can  make  no  difference 
that  his  manager  received  the  goods.  It 
is  to  be  remembered  that  these  ivere  specific 
goods.  I  am  of  opinion  that  there  is  suffi- 
cient evidence  of  acceptance.  The  defend- 
ant might  have  complained  just  as  though 
there  had  been  a  contract  in  writing,  if 
the  goods  were  not  up  to  sample.  There 
may  be  defects  in  goods  which  are  not  as- 
certainable on  inspection,  or  which  require 
an  elaborate  inspection  or  which  require 
the  goods  to  be  used  before  the  defects  can 
be  discovered,  so  as  not  to  preclude  suffi- 
cient evidence  to  take  the  case  out  of  the 
statute." 

It  is  not  at  all  a  matter  of  surprise,  we 
think,  after  such  "  reasoning"  as  the  case 
contains,  that  Kibble  i".  Gough,  though 
thoroughly  well  decided,  and  expressly  ap- 
proved and  distinguished  in  Page  v.  Mor- 
gan, 15  Q.  B.  Div.  228,  from  Rickard  v. 
Moore,  38  L.  T.  N.  s.  841,  should,  in  this 
latter  case,  be,  as  it  is,  doubted  by  even 
Bramwell,  L.  J.,  himself,  so  entirely  un- 
sound and  irrational  is  much  of  the  reas- 


oning, like  that  of  Lord  Campbell  in 
Morton  v.  Tibbett,  15  Q.  B.  428,  which  it 
contains.  From  the  general  reasoning  in 
Kibble  v.  Gough,  38  L.  T.  N.  s.  204,  and 
from  the  express  approval  in  it  of  the  un- 
sound, extra-judicial  view  of  Lord  Camp- 
bell in  Morton  v.  Tibbett,  15  Q.  B.  423, 
that  there  may  be  an  acceptance  and  also 
at  the  same  time,  its  exact  opposite,  a 
rejection  (a  refusal  to  accept),  of  the  same 
goods,  we  should  have  been  prepared  to 
expect  that  Kibble  v.  Gough  would  have 
held  that  the  goods  in  that  case,  though 
they  had  been  accepted,  might,  notwith- 
standing the  acceptance,  have  been  also 
rejected ;  i.  e.  both  accepted  and  rejected. 
But,  on  the  contrary,  the  rationale  of 
Kibble  v.  Gough  really  is,  that  the  goods, 
having  been  accepted,  being  s])ecific  goods 
bought  by  sample,  and  thus,  i>y  that  very 
act,  accepted,  —  recognized  as  the  very 
subject  of  the  contract,  — could  not,  after 
their  actual  receipt,  be  rejected  ;  although 
with  the  greatest  promptness,  immediately 
after  their  receipt,  the  vendee  did  all  in 
his  power  to  reject  them.  Yet  had  they 
not  conformed  to  sample,  as  they  would 
not  then  have  been  the  goods  which  had 
been  selected,  recognized,  accepted,  as  the 
very  subject  of  the  contract,  as  they  had 
not  been  accepted,  they  could,  after  and 
notwithstanding  their  actual  receipt,  be 
summarily  rejected.  The  actual  holding 
in  this  case,  opposed  to  the  reasoning  of 
Lord  Campbell  in  Morton  v.  Tibbett,  and 
to  Bramwell,  Brett,  and  Cotton,  L.  JJ.,  in 
Kibble  v.  Gough  itself,  fully  sustains  the 
whole  trend  of  our  reasoning  in  this  and 
in  the  next  preceding  Part. 
1  38  L.  T.  X.  s.  204. 


PART   VII.]  THE   ACTUAL   RECEIPT.  465 

it  was  claimed  that  there  had  been  an  acceptance  and  actual 
receipt  by  the  defendant.  Here,  the  case  essentially  differs  from 
the  facts  in  Kibble  v.  Gough.  In  that  case  the  very  goods  — 
specific  goods  purchased  by  sample  (in  itself  an  acceptance  by 
the  vendee,  —  a  "  recognition  that  he  had  bought  the  goods,"  to 
use  the  words  of  Bramwell,  L.  J.,  in  Kibble  v.  Gough)  —  were 
actually  received,  and  hence,  having  been  accepted  and  received, 
could  not  be  rejected ;  although  in  Rickard  v.  Moore,  where 
Bramhall,  L.  J.,  confessing  himself  puzzled  "  as  to  what  consti- 
tutes '  acceptance  '  within  the  Statute  of  Frauds  "  (in  accordance 
with  his  unsound  reasoning  in  Kibble  v.  Gough,  which  evidently 
shows  that  he  was  "puzzled"),  intimates  that  in  Kibble  v.  Gough 
there  might  have  been  both  an  acceptance  and  (at  the  same  time) 
its  exact  opposite,  —  a  rejection  of  the  identical  goods  which  had 
been  accepted.  But,  in  Rickard  v.  Moore,  the  goods,  not  having 
been  equal  to  sample,  were  not  the  goods  which  were  purchased, 
approved,  recognized,  taken  to  as  the  very  subject  of  the  sale, 
accepted  ;  and  hence,  not  having  been  accepted,  could,  even  after 
their  actual  receipt,  be  rejected.  And,  as  both  acceptance  and 
actual  receipt  are  required  to  satisfy  the  statute,  not  having 
been  accepted,  but  having  been,  on  the  contrary,  rejected,  there  was 
no  contract  to  be  "  deemed  good  "  under  the  statute.  The  Court 
of  Appeal,  in  what  we  think  is  the  perfectly  well-decided  case  of 
Rickard  v.  Moore,^  affirmed  the  judgment  of  the  court  below. 

Kibble  v.  Gough  ^  and  Rickard  v.  Moore  ^  are,  we  think,  both 
well-decided  cases.  Where  the  two  cases  essentially  differ  is, 
that  in  the  former  there  was  a  purchase  by  sample  of  specific 
goods  (itself  an  acceptance),  and,  on  the  actual  receipt  of  those 
very  goods,  which  had  been  the  special  subject  of  the  contract,  they 
could  not  be  rejected,  as,  by  their  very  purchase,  they  had  been 
approved,  recognized,  accepted  as  the  very  subject  of  the  pur- 
chase, and,  therefore,  could  not  be  both  accepted  and,  at  the  same 
time,  its  exact  opposite,  —  rejected. 

But  in  Rickard  v.  Moore*  the  purchase  was,  also,  a  purchase  by 
sample  of  specific  goods,  —  itself  an  acceptance,  a  recognition,  an 
assenting  to  of  those  very  goods ;  and  hence,  after  their  actual  re- 
ceipt, having  been  accepted,  they  could  not  have  been  rejected. 
But,  in  fact,  they  never  were  actually  received.  The  goods 
which  were  actually  received  were  not  the  goods  which  had 
])een  approved,  recognized,  assented  to,  accepted,  but  entirely 
different  goods,  not  according  with  the  sample ;  and,  hence,  not 
having  been  accepted,  could  be,  as  they  were,  rejected.     But  for 

1  38  L.  T.  N.  s.  841.  »  38  L.  T.  N.  s.  841. 

'■i  Ih.  204.  *  Ibid. 

VOL.  II.  30 


466  COMMENTARIES   ON    SALES.  [BOOK   TV. 

this  distinction,  Bramwell,  L.  J.'s,  doubts,  in  Rickard  v.  Moore, 
of  the  soundness  of  his  own  holding  in  Kibble  v.  Gough,  would 
have  been  quite  well  founded;  for,  after  the  actual  receipt  of 
the  goods,  the  acts  of  rejection  in  Kibble  v.  Gough  were  both 
more  prompt,  more  decided,  and  in  every  way  less  equivocal  than 
in  Rickard  v.  Moore.  But,  in  Rickard  v.  Moore,  the  right  of 
rejection  remained  after  the  actual  receipt,  because  the  goods 
received  were  not  the  goods  which  were  purchased  ;  and  hence 
they  had  never  been  accepted,  recognized,  approved,  assented  to 
as  the  very  subject  of  the  purchase.  In  Kibble  v.  Gough,  on  the 
contrary,  they  were  the  very  goods  which  were  purchased,  ac- 
cepted, approved,  recognized,  assented  to,  adopted  as  the  very 
subject  of  the  purchase;  and  hence,  after  having  been  actually 
received,  having  been  accepted,  necessarily  could  not  be  the  sub- 
ject of  the  very  opposite  action,  —  rejected. 

The  distinction  we  have  drawn  betweed  Kibble  v.  Gough  ^  and 
Rickard  v.  Moore  ^  is  fully  sustained  by  the  latest  English  decision 
(a.  d.  1885) ;  that  in  Page  v.  Morgan,^  although  there,  as  in  so  many 
of  the  English  cases,  there  is  still  the  assumption  that,  with  respect 
to  the  same  goods,  under  the  same  contract,  there  can  be  under 
the  statute  both  an  acceptance  and  its  exact  opposite,  a  rejection. 
But  the  case  itself,  quite  in  harmony  with  the  perfectly  consistent 
cases  of  Kibble  v.  Gough  and  Rickard  v.  Moore,  is,  we  think,  un- 
questionably well  decided. 

■  Here,  as  in  the  two  previous  cases,  the  sale  was  of  specific  goods, 
by  sample.  The  wheat  which  was  the  subject  of  the  sale  was 
bought  by  verbal  contract,  by  the  defendant  from  the  plaintiff. 
It  was  shipped  by  the  plaintiff  to  the  defendant's  mill,  on  a  canal 
barge,  arriving  at  the  mill  on  the  evening  of  March  25.  At  8 
o'clock  on  the  morning  of  the  26th,  some  of  the  sacks  of  wheat 
were  hoisted  out  of  the  barge  to  the  mill  and  examined  by  the 
defendant's  foreman.  After  twenty-four  sacks  had  been  hoisted 
up  and  examined,  the  foreman  sent  for  the  defendant,  who  went 
to  the  mill,  and  inspected  the  twenty-four  sacks,  and  fourteen  ad- 
ditional which  he  had  hoisted  up  for  examination,  and  then,  at  9 
o'clock  on  the  same  morning,  he  told  the  bargeman  to  send  up  no 
more,  as  he  said  the  wheat  was  not  equal  to  sample.  The  defend- 
ant then,  on  the  same  day,  notified  the  vendor's  agent  at  a  neigh- 
boring town  that  the  wheat  was  not  equal  to  sample,  and  that  he 
should  not  take  it.  Some  days  afterwards  the  wheat  was  returned 
by  the  defendant  to  the  barge,  and,  the  plaintiff  refusing  to  take 
it  away,  it  remained  there  until  after  action  was  brought,  when  it 

1  38  L.  T.  N.  s.  204.  3  15  Q.  B.  Div.  228. 

a  lb.  841. 


PART   Vir.]  THE  ACTUAL  RECEIPT.  467 

was  sold  by  the  order  of  a  judge,  and  the  proceeds  paid  into  court. 
The  jury  found  that  the  wheat  was  equal  to  sample,  and  the  ver- 
dict was  for  the  plaintiff,  which  was  sustained  by  the  Court  of 
Appeal,  affirming  the  decision  of  the  Queen's  Bench  Division. 

Here,  the  rejection  of  the  goods,  after  their  actual  receipt,  was 
much  more  prompt  and  decided,  and  in  every  way  less  equivocal, 
than  in  Rickard  v.  Moore.^  In  fact,  the  goods  were  absolutely  re- 
jected, as  far  as  that  was  at  all  possible,  before  they  were  fully 
received.  All  the  difference  between  this  case  and  Rickard  v. 
Moore  is,  then,  as  regards  their  acceptance,  that  in  Page  v.  Mor- 
gan the  jury  found  that  they  were  the  actual  goods  bought,  and, 
by  that  very  act,  therefore,  were  accepted  as  such,  and  hence, 
being  those  identical  goods,  could  not,  after  their  actual  receipt, 
be  rejected  on  the  ground  that  they  were  not  the  goods  purchased, 
when,  in  fact,  they  were ;  while,  in  Rickard  v.  Moore,  the  goods 
received  never  having  been  accepted,  —  those  delivered  not  ac- 
cording with  the  sample,  being  not  the  same  as  those  bought,  — 
after  their  actual  receipt  they  could  be  rejected,  never  having 
been  accepted,  and,  therefore,  there  was  no  contract  which  under 
the  statute  could  be  "  deemed  good." 

But  in  Page  v.  Morgan,  the  very  goods  which  had  been  pur- 
chased, being  thus  approved,  recognized,  accepted  as  such,  having 
been  actually  received,  there  was  then  a  contract  "deemed  good" 
under  the  statute,  and  hence  they  could  not  thereafter  be  rejected, 
as  the  contract,  being  then  "  good,"  under  the  statute,  could  not 
be  rescinded  at  the  will  of  merely  one  of  the  parties  to  the  con- 
tract. But,  obviously  and  conclusively,  there  could  not  have  been, 
as  it  is  falsely  reasoned  even  in  Page  v.  Morgan  that  there  might 
have  been,  first,  the  actual  receipt  and  the  acceptance  under  the 
statute,  causing  the  contract  to  be  "  deemed  good," —  absolutely, 
conclusively,  unchangeably  "  good,"  —  and,  at  the  same  time,  in 
respect  to  the  very  same  goods,  also  the  exact  opposite  of  an  ac- 
ceptance, a  rejection  of  the  goods  on  the  ground  that  the  contract 
was  not  to  be  deemed  good. 

So,  while  we  think  the  cases  of  Kibble  v.  Gough,  Rickard  v. 
Moore,  and  Page  v.  Morgan  are  all  well  decided  ;  and,  as  regards 
the  ratio  decidendi  of  these  cases,  that  they  are  in  the  strictest  har- 
mony with  each  other  ;  yet  we  tliink  they  abound  in  unsound  rea- 
soning, the  result,  as  Bramwell,  L.  J.,  himself  put  it  in  Rickard  v. 
Moore,2  of  their  being  "  puzzled  as  to  what  constitutes  acceptance 
within  the  Statute  of  Frauds,"  and  of  the  confusion  running 
through  a  whole  century  of  the  English  cases,  resulting  from  their 
treating  the  acceptance  and  the  actual  receipt  as  being,  as  the 

1  38  L.  T.  N.  s.  841.  2  38  L.  T.  N.  s.  at  p.  842. 


468  COMMENTARIES   ON   SALES.  [BOOK   IV. 

judges  in  some  of  the  cases  expressly  state,  and  in  very  many 
more  of  them  imply,  "essentially  the  same;"  when,  in  fact, 
they  are  essentially  different,  because  the  statute  renders  it  ne- 
cessary that,  to  make  the  verbal  contract  be  deemed  good,  the 
vendee  must  "  accept  some  part  of  the  goods  sold,  and  actually 
receive  the  same." 

We  think  it  clear,  then,  that  the  vendee  may  accept  goods  and 
refuse  to  receive  them  ;  that  he  may  receive  goods,  which  he  has 
not  accepted,  and  refuse  to  accept  them,  or,  which  is  the  same,  re- 
ject them  ;  but  that  he  cannot  receive  goods,  accept  them,  and 
reject  them.  Reasoning  to  the  contrary  is,  we  think,  simply  atro- 
cious, no  matter  in  what  courts  or  with  what  judges  it  may  be 
found ;  and  the  result  of  such  reasoning  is  so  entirely  unreason- 
able a  construction  of  the  Statute  of  Frauds,  as  necessarily  and 
naturally  to  "  puzzle  "  and  involve  in  palpable  absurdity  those  who 
have  resorted  to  it,  as  has  been  done  in  so  many  of  the  English 
cases  on  the  subject. 

We  state  the  remainder  of  the  English  cases  on  the  actual  re- 
ceipt of  the  statute. 

In  Hunt  V.  Hecht  ^  the  defendant  agreed  to  purchase  some  bones 
to  be  selected  out  of  a  heap,  which  he  authorized  to  be  received 
by  a  wharfinger.  The  vendor  accordingly  sent  a  quantity  of 
bones  to  the  wharfinger,  but  on  the  following  day,  the  vendee 
examined  the  bones  and  refused  to  accept  them,  on  the  ground 
that  they  were  not  the  bones  he  had  bargained  for.  The  court 
held  that  although  there  was  an  actual  receipt  of  the  bones,  as 
they  were  not  the  bones  which  were  bought,  they  were  not  accept- 
ed, and  could  be  rejected.  Pollock,  C.  B.,  said  :  "  All  that  the 
defendant  agreed  to  buy  was  a  quantity  of  bones  of  a  particular  de- 
scription, to  be  separated  from  others  in  the  heap.  He  afterwards 
sent  to  the  plaintiiT  a  note  addressed  to  a  wharfinger,  authorizing 
the  latter  to  receive  and  ship  the  bones ;  but  wlien  the  defendant 
saw  them  at  the  wharf,  he  found  that  they  did  not  correspond 
with  his  order  and  refused  to  accept  them.  Tlierefore,  although 
there  was  a  receipt  of  the  goods  by  a  person  who  had  authority 
from  the  defendant  to  receive  tliem,  there  was  no  acceptance."  - 

1  8  Ex.  814.  also  points  to  the  fact  that,  under  the  stat- 

2  Martin,  B.,  in  Hunt  v.  Hecht,  8  Ex.  ute,  as  at  common  law,  the  fact  of  there 
814,  saw  that  an  acceptance  was  some-  being  a  definite  contract  of  purchase  and 
thing  otherwise,  and  more  than  a  mere  re-  sale  is  in  itself  an  acceptance  of  the  very 
ceipt,  and  that  the  view  of  Lord  Campbell,  subject  of  such  contract,  but  not  an  ac- 
C.  J.,  in  Morton  v.  Tibbett,  15  Q.  B.  428,  ceptance  of  something  else.  Martin,  B.'s, 
that  there  could  be  an  acceptance  and  ac-  judgment  in  cxtcn-io  is  :  "The  quejition  is, 
tual  receipt,  and  then  a  rejection  of  the  whether  the  deft»ndant  has  accepteil  and 
goods,  was  not  tenable.  The  view,  too,  actually  received  the  goods  bargained  for. 
that  the  purchaser  "was  only  bound  to  The  contract  was  to  buy  such  bones  as 
accept "  the  goods  which  he  had  purchased,  were  ordinary  merchantable  bones.     It  ap- 


I 


PART    VII.] 


THE   ACTUAL  RECEIPT. 


469 


The  acceptance  in  Holmes  v.  Hoskins^  was  very  clear,  but  there 
was  no  actual  receipt.  Here  there  was  the  specific  purchase  of 
fifteen  head  of  cattle  for  cash,  and  the  cash  was  not  paid,  nor  the 
cattle  removed  from  the  actual  possession  of  the  vendor,  Avho  held 
them  as  unpaid  vendor,  with  his  lien  attached,  although  they  were 
being  fed  with  the  purchaser's  hay.  Parke,  B.,  here  comes  pretty 
near  discriminating  properly  between  the  acceptance  of  the  specific 
cattle  as  the  subject  of  the  purchase,  which  was  clear  in  the  case, 
and  the  actual  receipt  of  the  statute,  which  was  entirely  wanting, 
where  he  says  :  "  In  order  to  satisfy  the  statute,  there  must  be  an 
acceptance,  and  an  actual  or  constructive  delivery." 

Now  in  this  case  there  was  no  actual  delivery ;  and  therefore, 
to  entitle  the  plaintiff  to  recover,  there  must  be  such  a  dealing 
with  the  cattle  by  the  defendant  as  owner,  that  the  plaintiff  would 
lose  his  lien.     But  it  is  clear  that  the  plaintiff  never  meant  to 


pears  that  there  were  various  sorts  of  bones 
intermixed  in  a  heap,  and  that  there  was 
no  purchase  of  the  bulk,  but  of  a  certain 
article  to  be  selected  from  it.  The  defend- 
ant was  only  bound  to  accept  inerchantable 
bones ;  and  an  order  is  given  to  a  wharf- 
inger to  receive  those  bones.  No  doubt 
in  one  sense  the  goods  were  received  [here 
it  is  again  evident  how  very  nearly  receive 
is  treated  as  accept]  by  the  defendant,  be- 
cause they  were  received  by  a  wharfinger 
directed  by  him  to  receive  tliem.  But  the 
question  is,  whether  there  has  been  an  ac- 
ceptance to  satisfy  the  statute.  There  are 
various  authorities  to  show  that,  for  the 
purpose  of  an  acceptance  within  the  stat- 
ute, the  vendee  must  have  had  the  oppor- 
tunity of  exercising  his  judgment  with  re- 
spect to  the  article  sent.  [Compare  this, 
with  respect  to  extent,  where  there  has 
been  a  sale,  for  instance,  by  sample,  with 
our  comments,  supra,  on  Kibble  v.  Gough, 
38  L.  T.  N.  s.  '204  ;  Riokard  v.  Moore,  38 
L.  T.  N.  s.  841,  and  Page  v.  Morgan,  15 
Q.  B.  Div.  228.]  Morton  v.  Tibbett,  15 
Q.  B.  Div.  428,  has  been  cited  as  an  au- 
thority to  the  contrary ;  but  in  reality 
that  case  decides  no  more  than  thi.^,  that 
where  the  purchaser  of  goods  takes  upon 
himself  to  exercise  a  dominion  over  them, 
and  deals  with  them  in  a  manner  incon- 
sistent with  the  right  of  property  being  in 
the  vendor,  that  is  evidence  to  justify  the 
jury  in  finding  that  the  vendee  has  ac- 
C(!pted  the  goods,  and  actually  received 
the  same.  The  court,  indeed,  there  say 
that  tlicre  may  be  an  acceptance  and  re- 
ceipt within  the  statute,  although  the  ven- 
dee lias  had  no  opportunity  of  examining 
the  goods,  and  filthougli  he  has  done  noth- 
ing to  preclude  himself  from  objecting  that 
they  do  not  correspond  with  tlie  contract. 


But,  in  my  opinion,  an  acceptance,  to  sat- 
isfy the  statute,  must  be  something  more 
than  a  mere  receipt  [it  is  noticeable  with 
what  hesitancy  even  this  statement  is 
made]  ;  it  means  some  act  done  after  the 
vendee  has  exercised,  or  had  the  means  of 
exercising,  his  right  of  rejection  ; "  which, 
we  submit,  is  quite  right,  where  there  ex- 
ists "the  right  of  rejection,"  i.  e.,  where 
there  has  been  no  previous  acceptance. 

As  a  matter  of  common  sense,  it  would 
seem  to  be  a  self-evident  proi)osition,  which 
should  not  be  open  to  question  or  attempted 
refutation,  that,  to  satisfy  the  statute, 
goods  are  not  accepted  until  they  are  ac- 
cepted, and  that,  as  they  cannot  be  both 
accepted  and  at  the  same  time  rejected, 
it  inevitably  follows  that,  notwithstanding 
their  actual  receipt,  so  long  as  they  are 
open  to  rejection,  they  have  not  been  ac- 
cepted. Of  course  these  self-evident,  ap- 
parently undeniable  propositions  have  not 
the  concurrence,  as  we  have  seen  in  our 
previous  Part  of  the  views  of  such  emi- 
nent lawyers  as  Lord  Cam)ibell,  Lord  Den- 
man,  Lord  Coleiidge,  ct  hoc.  genus  omne, 
but  we  think,  notwithstanding  this,  that 
they  are  none  the  less  true.  The  very  con- 
•struction  of  the  statute  itself  shows  that, 
in  the  minds  of  the  framers  of  the  act, 
the  acceptance  is,  as  was  the  case  at  com- 
mon law,  on  the  usual  purchase  of  goods, 
an  entity  in  itself  independent  of  the  ac- 
tual receipt,  which  it  usually  ]irecedes  ; 
thus  (1)  acceptance;  (2)  actually  receive 
the  same.  If  the  acceptance  was  some- 
thing dependent  upon,  resulting  fiom  or 
usually  succeeding  the  receiiit,  the  lan- 
guage more  jiroperly  would  have  been  re- 
versed, excejit  the  purchaser  shall  (1) 
receive  tmd  (2)  accept. 

1  9  Ex.  753. 


470'  COMMENTARIES   ON   SALES.  [BOOK   IV. 

part  with  the  cattle  until  the  price  was  paid;  and  there  is  no 
o-roimd  for  holding  that  the  mere  giving  permission  to  feed  the 
cattle  changed  the. possession.  Coming  so  near  the  proper  dis- 
tinction between  the  acceptance  and  the  actual  receipt,  as  they 
frequently  did,  it  is  remarkable  that  the  accurate  distinction  so 
often  escaped  them.  For  here,  although  the  onli/  question  in  the 
case  was  whether  there  was  such  a  constructive  receipt  of  the 
cattle  as  met  the  requirements  of  the  actual  receipt  of  the  statute, 
the  very  language  we  have  quoted  from  Parke,  B.,  was  preceded 
by  —  "I  am  of  opinion  that  there  was  no  reasonable  evidence  to 
go  to  the  jury  of  an  acceptance  and  receipt  of  the  cattle,"  —  wliile 
the  evidence  of  their  acceptance,  as  recognizing,  approving,  assent- 
ing, taking  to  them,  as  at  common  law,  as  the  very  subject  of  the 
purchase,  as  in  Cusack  v.  Robinson,^  was  beyond  any  question  ; 
all  that  was  further  required  being  the  actual  or  constructive 
change  of  possession  to  satisfy  the  requirements  of  the  statute. 

In  Bigg  V.  Whisking 2  various  lots  of  timber,  in  different  locali- 
ties, were  purchased  by  the  defendant  from  the  plaintiff,  during 
the  same  day,  and,  at  the  close  of  the  purchases,  a  memorandum 
was  made  between  the  parties  of  the  whole  transaction.  The  de- 
fendant received  part  and  refused  the  rest.  The  purchases  were 
held  to  be  one  entire  transaction.  There  was  here  again,  as  in 
Cusack  V.  Robinson,^  an  acceptance  of  the  goods  as  the  subject  of 
the  purchase ;  and  the  actual  receipt  of  a  part  of  the  timber,  there- 
after, Avas  sufficient  to  satisfy  the  statute. 

Where  the  jury  found  that  the  terms  of  the  contract  for  the  sale 
of  a  specific  horse  were  complete,  which  amounted  to  an  accept- 
ance of  the  horse  as  the  specific  subject  of  the  contract,  the  ven- 
dee then  lending  the  horse  to  the  vendor ;  it  was  held  that  this 
was  a  sufficient  actual  receipt  of  the  horse  to  satisfy  the  statute, 
the  effect  of  the  finding  of  the  jury  being  that  the  possession  of 
the  vendor  was  that  of  the  vendee,  and  was  not  in  the  character 
of  unpaid  vendor  ;  and,  therefore,  that  the  vendor  had  lost  his  lien, 
and  the  vendee  was  liable  for  the  price  of  the  horse  as  for  goods 
sold  and  delivered.* 

But  wliere  there  was  a  purchase  of  all  the  w^halebone  which  the 
vendor  could  procure,  which,  in  effect,  under  the  statute,  would 
amount  to  an  acceptance  of  it  as  the  very  subject  of  the  purchase  ; 
as  the  receipt  of  a  carrier  is  not  the  receipt  of  the  vendee,  an  ac- 
tion against  the  carrier  for  a  loss  of  the  goods  could  not  be  sus- 
tained by  the  vendee,  he  not  having  actually  received  the  goods, 
so  that,  under  the  statute,  the  property  would  have  passed  to  him, 

1  1  B.  &  S.  299.  3  1  B.  &  S.  2P9. 

2  14  C.  B.  195.  4  Marvin  v.  Wallis,  6  E.  &  B.  726. 


PART   VII.]  THE   ACTUAL  RECEIPT.  471 

under  a  contract  "  deemed  good ; "  as  the  contract,  under  the  stat- 
ute, will  only  be  deemed  good  when  there  have  been  both  the  ac- 
ceptance and  the  actual  receipt.^ 

Where,  however,  there  has  been  an  acceptance  of  the  goods  by 
the  vendee,  and  they  have  been  shipped  by  a  carrier,  by  the  ven- 
dor, but  simply  as  the  agent  for  the  vendee,  the  carrier  being  the 
vendee's  own  carrier,  in  which  case  the  vendor  would  have  no 
right  of  stoppage  in  transitu,  the  actual  receipt  of  the  statute  is 
satisfied,  and  the  vendee  is  liable  for  the  goods  as  for  goods  sold 
and  delivered.2  And  where  there  was  a  sale  of  specific  goods  by 
sample,  in  bond,  and,  after  the  sale,  the  goods  continued  to  be 
held  in  the  vendor's  bonded  warehouse,  but  in  the  capacity  of 
warehouseman  only,  it  was  held  that  the  vendor's  lien  as  unpaid 
vendor  was  gone,  and  that  there  was  a  sufficient  actual  receipt  of 
the  goods  to  satisfy  the  statute.^ 

In  Simmonds  v.  Humble  *  the  question  before  the  jury  as  to  an 
actual  receipt  under  the  statute  was  entirely  ignored,  —  the  ques- 
tion there  having  simply  been  whether  there  was  an  acceptance 
of  the  goods  sold.  There  there  was  a  sale  of  hops  by  sample,  and 
the  bulk  was  recognized  as  according  with  the  sample  :  so  the  ac- 
ceptance was  clear.  As  stated  by  Williams,  J.,  "  There  was  not 
only  a  verification  of  the  bulk  by  comparison  with  the  sample,  but 
a  weighing  and  approval  by  the  agents  of  both  parties."  And 
although,  as  is  noticed  by  Williams,  J.,  "  No  point  appears  to 
have  been  made  as  to  whether  there  was  a  sufficient  receipt,"  as 
the  hops  were  in  the  possession  of  a  third  party  as  warehouse- 
man, and  the  result  was,  that,  as  soon  as  the  sale  was  perfected 
(i.  e.  so  that  there  would  have  been  a  good  contract  for  the  specific 
goods  at  common  law),  the  warehouseman  began  to  hold  the  hops 
for  the  buyer,  there  was  also  the  actual  receipt  of  the  statute. 

In  Barnett  v.  Farley  ^  the  actual  receipt  was  very  similar  to 
that  in  Kibble  v.  Gough,^  Rickard  v.  Moore,^  and  in  Page  v.  Mor- 
gan ;  ^  but  there  seems  to  have  been  no  acceptance  in  this  case  of 
the  goods,  —  which  were  a  chattel  made  to  order  for  a  particular 
purpose,  —  and  it  was  claimed  that  they  were  not  made  according 
to  the  order,  nor  fitted  for  the  purpose,  and  as,  on  their  receipt, 
the  chattel  was  promptly  rejected,  it  was  held  that  there  had  been 
no  acceptance  of  it  within  the  meaning  of  the  statute. 

The  question  came  up  in  Cooper  v.  Bill  ^  whether  there  had  or 

1  Coombs  V.  The  Bristol,  &c.  Ry.  Co.,  ^  11  L.  T.  n.  s.  107. 
3  H.  &  N.  510.  6  ;,8  L.  T.  N.  s.  204. 

2  fhirrie  v.  Anderson,  2  E.  &  E.  592.  ^  Ih.  841. 

8  Castle  V.  Swonlcr,  6  H.  &  N.  828,  re-  «  35  q.  p,.  pjv.  228. 

versing  a.  c.  .5  H.  &  N.  281.  9  3  H.  &  C.  722. 

*  16  C.  B.  N.  s.  268. 


472 


COMMENTARIES   ON   SALES. 


[book  IV. 


had  not  been  a  transmission  of  the  possession  of  property  to  put  an 
end  to  the  vendors'  lien  and  to  their  right  of  stoppage  in  transitu. 
The  facts  showed  a  clear  acceptance  of  the  goods  had  the  ques- 
tion arisen  under  the  Statute  of  Frauds.  The  court  held,  tliat,  as 
the  vendors  had  delivered  the  goods  to  the  shipping-wharf  for  the 
vendee  (the  vendee  having  given  his  promissory-notes  for  the 
subject  of  the  purchase,  —  timber,  and  having  there  marked  and 
squared  it  after  its  arrival  at  the  wharf),  the  property  and  posses- 
sion had  passed  to  the  vendee,  so  that  he  would  have  been  liable 
for  the  notes  even  though  the  timber  had  been  thereafter  de- 
stroyed, and  that  there  had  been  a  change  in  the  possession  of 
the  timber  which  defeated  the  lien  and  terminated  tlie  traiu- 
itus  as  to  the  vendors,  even  though,  under  the  contract,  the  duty 
still  devolved  upon  them  to  incur  expense  in  the  removal  of  the 
timber  to  another  part  of  the  wharf,  where  it  could  be  removed 
by  canal-boats.  The  same  facts  would  show  an  actual  receipt  to 
satisfy  the  statute  ;  the  effect  of  the  change  in  the  property  and 
possession  being  the  same  in  the  one  case  as  in  the  other. 

The  case  of  Smith  v.  Hudson,^  which  we  have  fully  examined 
{supra,  415),  and  which  we  think  is,  as  we  have  shown,  more  than 
doubtful  on  the  question  of  acceptance  under  the  statute,^  is  per- 


1  6B.  &S.  431. 

2  On  the  authority  of  Kibble  v.  Gough, 
38  L.  T.  N.  s.  204,  Riekard  v.  Moore,  38 
L.  T.  N.  s.  841,  and  Page  v.  Morgan,  15 
Q.  B.  Div.  228,  we  think  that,  as  in  Smith 
V.  Hudson,  6  B.  &  S.  431,  the  sale  was 
by  sample,  the  goods  lying  in  the  vendee's 
possession  for  four  days  without  objec- 
tion ;  had  the  vendee  been  solvent,  and 
tlie  action  had  been  against  him  for  the 
price  of  the  goods  as  for  goods  sold  and 
delivered,  the  decision  must  have  been 
against  him,  unless,  at  the  very  least,  he 
could  have  shown  that  the  goods  which 
he  had  actually  received  were  not  accord- 
ing to  sample,  and  hence  were  not  the 
very  goods  which  he  had  purchased,  ap- 
proved, recognized,  accepted,  as  per  sam- 
ple, as  the  very  goods  which  he  was  to 
receive.  Hence,  we  think,  it  is  clear  that, 
after  the  actual  receipt  of  the  goods  by 
the  vendee,  so  that  the  vendor's  right  of 
stoppage  in  transitu,,  and  lien  as  unpaid 
vendor,  were  gone,  the  vendor  could  not 
recover  the  goods  back  again,  or  in  him- 
self rescind  the  contract,  simply  because 
it  might  have  been  in  the  power  of  the 
vendee,  if  executed  promptly  on  the  actual 
receipt  of  the  goods,  to  have  rejected  the 
goods  if  it  had  been  found,  as  it  was  not 
in  Smith  v.  Hudson,  6  B.  &  S.  431,  that 
the  goods  were  jjot  according  to  sample, 
and,  therefore,  were  not  the  goods  which 


were  actually  purchased,  and,  on  the  as- 
sumption that  they  conformed  to  the 
sample,  actually  received  as  the  accepted, 
assented  to,  subject  of  the  purchase.  We 
think  it  clear,  on  the  authority  of  the 
above-named  cases,  that  the  vendor  could 
not,  most  certainly,  recover  the  goods  back 
again  without  at  least  showing  that  they 
did  not  conform  to  the  sample,  and,  there- 
fore, were  not  the  specific  goods  which 
were  sold,  nor  the  goods  which,  as  such 
goods  sold,  were  accepted  and  actually 
received  by  the  vendee.  On  the  same 
ground,  we  think  that  Nicholson  v.  Bower, 
1  E.  &  E.  172,  is  even  more  emj>hatically 
overruled  by  Kibble  v.  Gough,  Riekard  v. 
Sloore,  and  Page  v.  Morgan,  than  Smith 
V.  Hudson  itself  is  ;  for  in  Nicholson  v. 
Bower  it  was  affirmatively  shown  that  the 
goods  which  had  been  actually  received 
by  the  vendee,  so  that  the  vendor's  lien 
for  the  unpaid  purchase-money,  and  his 
right  of  stoppage  in  transitu,  were  gone, 
were  the  very  goods  purchased  liy  the 
vendee,  as  they  conformed  to  the  sample, 
and,  therefore,  were  the  specific  goods 
which  he  had  approved,  assented  to,  rec- 
ognized, accepted,  as  the  subject  of  the 
purchase.  Hence,  under  the  authority  oi 
the  well-decided  cases  of  Kibble  v.  Oough, 
Riekard  v.  Jloore,  and  Page  v.  Morgan, 
had  the  action  in  Nicholson  v.  Bower  been 
against   the  vendee  for  the  price  of  the 


PART    VII.] 


THE    ACTUAL    RECEIPT. 


473 


fectly  clear  as  to  the  actual  receipt.  As  the  transitus  had  ended, 
the  goods  having  arrived  at  their  place  of  destjnation,  and  being 
in  the  custody  of  the  railway  company,  which  held  them  not  as 
carriers,  but  as  warehousemen  for  the  vendee,  and  subject  to  his 
order  as  to  their  transportation  to  a  fresh  destination,  the  right  of 
stoppage  in  transitu  was  gone,  and  the  actual  receipt  of  the  statute 
was  unquestionably  satisfied. 

There  was  a  purchase  by  the  defendant  from  the  plaintiff,  in 
Marshall  v.  Green,^  of  specific,  ascertained  goods,  by  verbal  con- 
tract, for  £'26,  the  subject  of  the  purchase  being  growing  trees, 
which,  under  the  circumstances,  were  held  to  be  personal  chat- 
tels. The  trees  were  purchased  on  February  27 ;  the  contract 
being  that  they  were  "to  be  got  away  by  the  vendee  as  soon  as 
possible."  The  defendant's  servants  entered,  and  cut  the  trees 
upon  March  2,  3,  and  4.  After  six  of  the  trees  had  been 
cut,  the  plaintiff  wrote  a  letter  countermanding  the  sale.  The 
defendant,  nevertheless,  felled  the  remainder  of  the  trees ;  and, 
notwithstanding  a  notice  to  the  contrary  from  the  plaintiff's 
solicitors,  subsequently  removed  the  whole.  Before  receiving  the 
letter  countermanding  the  sale,  the  defendant  had  agreed  to  sell 
the  tops  and  stumps  to  a  third  person.     On  these  facts,  in  an 


goods,  as  for  goods  sold  and  delivered, 
aftei"  their  actual  receipt,  the  goods  being 
iu  contbrniity  with  the  sample,  and,  as 
such,  being  the  identical  goods  which  he 
had  purchased,  approved,  recognized,  as- 
sented to,  accepted,  as  the  very  subject 
which  he  had  been  purchasing,  the  judg- 
ment must  have  been  against  him,  as  it 
was  against  the  defendants  in  the  strictly 
analogous  cases  of  Kibble  v.  Gough  and 
Page  V.  Morgan.  It  therefore  follows 
that,  in  Nicholson  v.  Bower,  there  having 
been  both  the  acceptance  and  the  actual 
receipt  of  the  identical  goods  purchased, 
the  requirements  of  the  statute  were  .sat- 
isfied ;  the  stoppage  in  transitu  and  the 
vendoi-'s  lien  for  the  unpaid  purchase- 
money  were  gone ;  the  property  and  ])os- 
session  had  fioth  vested  in  the  vendee  ; 
the  vendor  had  his  right  of  action  for  the 
price  as  for  goods  sold  and  delivered,  but 
could  not  maintain  trover  or  replevin  for 
goods  in  which  he  had  ceased  to  have 
either  the  property  or  the  right  of  pos- 
session. 

In  Couston  v.  Chapman,  L.  R.  2  So. 
&  Div.  2.'j(),  it  was  lield  thnt  the  [uircliaser 
of  goods  hy  sample  ouf^ht  to  examine  them 
without  (If lay ;  and  if  he  find  tliey  are  not 
conformal)le  to  the  sample,  he  may  reject 
them  and  rescind  tlie  contract,  giving  im- 
mediate notice  that  lie  does  so,  and  that 
the  goods  are  .at  the  risk  and  disposal  of 


the  vendor  ;  that  though  he  may  reject 
them  if  they  do  not  conform  to  the  sam- 
ple, if  he  accept  them,  even  though  they 
do  not  conform  to  the  sample,  his  power 
of  rejection  is  gone.  Couston  v.  Chap- 
man, L.  R.  2  Sc.  &  Div.  250,  was  the  case 
of  the  sale  of  specific  goods  by  sample. 
P>ut  whether  at  common  law  or  under  the 
statute,  where  goods  bought  by  sample 
have  been  actually  received,  but  where, 
from  the  nature  of  the  goods,  considerable 
delay  is  necessary  beibre  it  can  be  ascer- 
tained whether  the  goods  are  according  to 
sample  or  not,  and,  therefore,  wliether 
they  are  the  specific  goods  purchased  or 
not,  the  goods  may  be  rejected  as  not  con- 
forming to  sample  within  such  period  as 
that  fact  can  be  reasonably  ascertained. 
Heilbutt  V.  Hickson,  L.  K.  7  C.  P.  438. 
And  where  goods  are  so'ld  by  sample,  and 
the  bulk  is  found  by  the  pun-haser  on  in- 
spection, after  actual  receipt,  not  to  be 
equal  to  sample,  the  purchaser  may  reject 
the  goods  by  giving  notice  to  tlie  vendor 
that  he  will  not  accept  them,  and  that 
they  are  at  the  vcndoi's  risk  ;  and  lie  is 
not  bound  to  .send  them  back,  or  oiler  to 
send  them  back,  to  the  vendor,  oi'  to  place 
them  in  neutral  cu.stody.  (Jriinoldhy  v. 
Wells,  L.  R.  10  C.  P.  391;  Lucy  v.  Alon- 
flet,  5  H.  &  N.  229. 
1  1  C.  P.  Div.  35. 


474 


COMMENTARIES  ON   SALES. 


[book  IV. 


action  of  trespass,  with  a  count  in  trover,  the  verdict  was  en- 
tered for  the  plaintiff ;  leave  being  reserved  to  enter  it  for  the 
defendant,  on  the  ground  that  the  contract  showed  that  he  had 
the  right  to  cut  down  and  remove  the  trees.^ 

Here,  the  purchase  being  of  specific,  ascertained  goods,  as  in 
Cusack  V.  Robinson,^  there  was  no  room  for  question  as  to  the 
fact  of  the  acceptance  of  the  goods  as  the  particular  subject 
of  the  contract,  although,  even  here,  Coleridge,  C.  J.,  again  dis- 
cussed the  question  as  to  "  whether  there  was  here  an  acceptance 
and  actual  receipt  of  part  of  the  goods."  In  which,  again,  as  he 
and  so  many  other  of  the  English  judges  have  so  often  done 
before,  he  treats  the  term  "  acceptance  "  as  being  virtually  syn- 
onymous with  the  "  actual  I'eceipt "  of  the  statute.^  But  as  in 
the  leave  reserved  there  was  no  question  as  to  the  acceptance, 
so  the  contention  of  the  plaintiff's  counsel  was  that  as  there  was 
nothing  to  devest  the  vendor's  lien  there  could  be  no  actual  re- 
ceipt ;  *  raising  no  question  as  to  the  acceptance.     And  Brett,  J., 


1  See  Smith  v.  Surman,  9  B.  &  C.  561, 
stated  supra,  p.  338  et  seq.,  which  in  most 
of  its  facts  was  a  very  similar  case  to  Mar- 
shall V.  Green,  1  C.  P.  Div.  35 ;  but  it  dif- 
fered essentially  from  this  latter  case  in  the 
respect  that  although  in  both  there  was 
a  purchase  of  specific,  ascertained  goods, 
constituting  a  clear  acceptance  of  the  sub- 
ject of  the  sale  in  each  case,  yet  in  Smith 
V.  Surman  the  trees  were  felled  by  the  ven- 
dor, and  there  was  no  actual  receipt  of 
them,  as  there  was  in  Marshall  v.  Green, 
where,  under  the  contract,  the  trees  were 
to  be  felled  and  actually  wei'e  felled  by 
the  Vendee. 

2  1  B.  &  S.  299. 

^  The  language  of  Coleridge,  C.  J.,  is: 
"  Is  this  contract  within  the  17th  section  ? 
This  depends  on  whether  there  was  here 
an  acceptance  and  actual  receipt  of  part  of 
the  goods.  There  have  been  many  deci- 
sions on  the  question,  what  amounts  to 
such  an  acceptance  and  receipt  ?  It  was 
very  early  determined  that  an  actual  manu- 
al receipt  of  the  article  sold  was  not  neces- 
sary, but  that  a  constructive  receipt  would 
do.  Here  six  of  the  trees  were  cut  down 
before  the  sale  was  countermanded,  and  at 
a  time  when  it  must  be  taken  that  that  was 
done  with  the  assent  of  the  seller,  and  por- 
tions were  sold.  What  more  could  have 
been  done  short  of  actually  removing  the 
trees  ?  These  were  bulky  trees  that  a  man 
could  not  carry  away  like  a  small  article. 
If  anything  short  of  actual  manual  posses- 
sion could  be  sufficient  all  was  done  that 
could  be  done.  The  defendant  immedi- 
ately cuts  down  the  trees,  and  converts 
them  into  chattels,  and  deals  with  them 


as  owner  by  selling  the  tops  and  stumps. 
In  the  absence  of  any  decision  on  the  sub- 
ject, I  should  have  said  that  if  it  be  once 
admitted  that  anything  short  of  actual 
manual  possession  could  be  a  sufficient 
acceptance  and  receipt,  there  was  amply 
sufficient  to  show  such  an  acceptance  and 
receipt  here.  But  we  are  not  without  au- 
thority on  the  subject.  There  have  been 
repeated  decisions  that  where  anything 
has  been  done  on  the  part  of  the  vendee 
under  such  a  contract  as  this,  to  the  whole 
or  part  of  the  goods  indicating  an  inten- 
tion to  deal  with  the  subject-matter  as 
owner  in  possession,  and  he  is  allowed  by 
the  vendor  so  to  deal  with  it,  that  amounts 
to  an  acceptance  and  receipt  within  the 
statute.  It  has  been  held  with  regard  to 
bulky  things  that  the  delivery  of  the  in- 
dkia  of  title  was  sufficient.  When  the 
purchaser  had  marked  the  goods,  and  left 
them  so  marked  on  the  vendor's  })remises, 
it  was  held  that  there  was  a  sufficient  ac- 
ceptance and  receipt.  The  case  of  Chaplin 
V.  Rogers,  1  East,  192,  seems  to  me  to  be 
a  distinct  authority  for  the  view  that  there 
was  [sic]  an  acceptance  and  receipt  here, 
the  words  of  the  section  having  received 
all  the  fulfilment  the  subject-matter  was 
capable  of."  There  being  no  question 
whatever  as  to  the  acceptance  in  the  case, 
we  think  the  facts  showed  clearly  the  ac- 
tual receipt  of  the  statute  of  some  part  of 
the  goods  sold  and  accepted. 

*  As  before  the  sale  was  countermanded 
the  defendant  had  felled,  and  thereby  had 
actually  taken  possession  of  six  of  the  trees 
which  he  had  purchased  standing,  here 
was  a  clear  actual  receipt  of  some  part  of 


PART   VII.] 


THE   ACTUAL   RECEIPT. 


475 


showing  in  the  case  a  much  clearer  appreciation  of  the  law  than 
Coleridge,  C.  J.,  conceded  the  acceptance,  and  simply  considered 
the  question  as  to  whether  the  acts  of  the  defendant  in  actually- 
cutting  the  trees  under  the  authority  given  to  him  by  the  plaintiff 
and  by  the  plaintiff's  tenant,  did  not,  under  the  statute,  constitute 
an  actual  receipt  of  some  part  of  the  goods  ;  coming,  with  the  rest 
of  the  court,  to  what  we  thinl^:  was  unquestionably  the  sound 
conclusion  that  the  defendant  had,  prior  to  the  countermand, 
taken  actual  possession  of  some  of  the  trees,  meeting  the  require- 
ment of  the  "  actual  receipt "  of  the  statute  of  some  part  of  the 
goods  which,  by  their  specific  purchase,  had  been  accepted  as  the  ' 
very  subject  of  the  purchase.^ 


the  goods,  the  whole  of  which  he  had  ac- 
cepted as  the  specitic  subject  of  the  pur- 
chase, and  hence  the  contract  under  the 
statute  was  to  be  deemed  good,  and  the 
plaintiff  could  not  of  his  own  mere  motion 
rescind  it.  The  fact  that  the  defendant, 
under  the  contract,  liad  the  right  to  get 
away  the  trees  as  soon  as  possible  showed 
that  the  vendor  had  not  retained  his  lien, 
as  he  would  not  in  the  analogous  case  of  a 
sale  on  credit,  wliere  the  purchaser  had 
the  immediate  right  of  possession,  as  he 
had  in  this  case.  The  continuance  of 
the  lien,  too,  as  we  have  already  shown, 
does  not  affect  the  question  under  the 
statute,  where  there  have  been  an  accept- 
ance and  an  actual  receipt  of  some  part  of 
the  goods.  There  the  vendor's  lien  may 
continue  to  attach  to  the  residue,  and  yet 
the  exception  in  the  statute  be  complied 
with  so  as  to  make  a  good  contract,  which 
neither  of  the  parties  to  it  can  rescind 
without  the  consent  of  the  other. 

1  Brett,  J.,  says  :  "It  was  not  denied 
in  argument  that  there  was  an  acceptance. 
The  only  question,  therefore,  is,  w'hether 
there  was  evidence  of  a  receipt.  Though 
there  was  an  acceptance,  there  was  no  act- 
ual carrying  away  of  the  things  from  the 
premises  of  the  seller.  The  seller  was  not 
in  actual  possession  of  the  land,  but  I  think 
that  makes  no  difference,  and  the  case  must 
be  treated  as  if  he  were.  The  purchaser, 
by  virtue  of  his  license  to  go  on  the  land, 
with  the  acquiescence  of  the  tenant  went 
on  the  land,  and,  while  the  verbal  contract 
was  still  uncountermanded  by  the  plain- 
tiff, cut  down  six  of  the  trees,  and  made 
a  sub-contract  for  the  sale  of  the  tops  and 
stumps.  If  the  sub-sale  liad  stood  alone 
I  should  have  doubted  wlietlier  it  would 
have  been  evidence  of  an  actual  receipt 
[See  our  comments  on  what  we  tliink  was 
the  badly-decided  case  of  liaines  v.  .levons, 
7  C.  &  P.  288,  state<l  sxpra,  p.  440,  wliere, 
we  think,  there  was  not  the  merest  scin- 
tilla of  evidence   of  an  actual  receipt]  ; 


but  here  he  did  something  to  the  trees 
themselves.  I  should  be  inclined  to  say 
that  where  there  is  no  actual  removal  of 
the  things  sold,  the  question  depends  on 
this  proposition,  viz.,  that  when  there  has 
been  during  the  existence  of  the  verbal 
contract,  for  however  short  a  time,  an 
actual  possession  of  the  things  sold,  and 
something  has  been  actually  done  to  the 
things  themselves  by  the  buyer  which 
could  only  properly  be  done  by  an  abso- 
lute owner,  there  is  evidence  to  go  to  a 
jury  of  an  actual  receipt  of  the  things. 
This  principle  will,  I  think,  be  found  to 
be  the  governing  principle  in  all  the  de- 
cided cases.  Thus,  for  instance,  where 
goods  were  handed  over  the  counter  to  the 
puichaser  and  marked  by  him  ;  where 
casks,  though  not  taken  away,  have  had 
their  spigots  cut  off  by  the  purchaser,  and 
in  other  similar  cases,  there  has  been  an 
actual  possession  by  the  buyer,  and  some- 
thing actually  done  to  the  goods  them- 
selves by  him  which  could  only  properly  be 
done  by  an  absolute  owner.  Here,  by  cut- 
ting down  the  trees,  the  defendant  actually 
did  something  to  them  which,  apart  from 
the  sale  over  of  the  toppings,  amounted,  in 
my  opinion,  to  an  actual  receijit  of  them. 
This  being  so,  the  words  of  the  Izth  section 
seem  to  me  to  have  been  satisfied." 

Where  the  vendor  retains  goods  in  his 
possession  with  his  lien  attached,  if  his 
vendee  sell  the  goods,  and  the  original 
vendor  recognize  the  sale  by  receiving 
the  subsequent  w%arehouse  rent  from  the 
sul)-vendee,  tlie  lien  of  tlie  original  ven- 
dor for  his  unpaid  purcliase-moncy  is  gone. 
Hurry  v.  Mangles,  1  Camp.  4.51.  But 
where  a  sale  of  goods  is  made  for  cash, 
and  the  vendor  retains  possession  of  the 
goods  as  unpaid  venilor,  his  charging  ware- 
house rent  to  tlie  vendee  from  tlie  date  of 
the  purchase  will  not  of  itself  amount  to 
a  constructive  change  in  the  possession 
so  as  to  deprive  tlie  vendor  of  liis  lien. 
Bloxam  v.  Sanders,  4  B.  &  C.  941.     And 


476 


COMMENTARIES   ON   SALES. 


[book  IV. 


Ill  our  investigation  of  this  subject,  in  this  and  the  last  pre- 
ceding Part,  we  have  seen  that,  within  the  clause  of  the  sev- 
enteenth section  of  the  act  we  have  been  considering,  where 
no  part  of  the  goods  has  been  accepted  and  actually  received, 
tliere  is  no  contract  which  can  be  deemed  good  under  the  stat- 
ute, and  hence  there  is,  in  such  case,  no  contract  at  all.  It, 
therefore,  was  suggested  as  a  test,  where,  to  bring  the  case  within 
the  exception  of  the  statute,  it  is  claimed  that  the  whole  of  the 
goods  have  been  accepted  and  actually  received,  that  this  could 
not  be  sustained  in  any  case  where  the  vendor's  lien^  or  right 

where  the  vendor,  who  holds  the  goods 
with  his  lien  attached,  bj^  receiving  ware- 
house rent  from  a  sub-vendee  of  part  of 
the  goods  which  have  been  sold  by  his 
vendee,  thereby  releases  his  lien  on  such 
part  of  the  goods  as  have  been  so  sold,  this 
does  not  release  the  residue  of  the  goods 
from  the  vendor's  lien  for  the  purchase- 
money.  Miles  V.  Groton,  1  Cr.  &  M.  504, 
513.  But  where  the  goods  are  in  the 
warehouse  of  the  vendor,  with  his  lien  at- 
tached as  unpaid  vendor,  and  on  the  re- 
sale of  the  goods  by  the  vendee  a  delivery 
order  is  lodged  with  the  original  vendor 
as  warehouse-keeper,  and  he  accepts  it, 
and  transfers  the  goods  in  his  warehouse- 
books  to  the  sub-vendee,  he  becomes  the 
agent  of  the  sub-vendee,  and  cannot  con- 
test his  title,  nor  claim  a  lien  upon  the 
goods.  Pearson  v.  Dawson,  E.  B.  &  E. 
448.  And  see  per  Bayley,  J.,  in  Hawes 
V.  Watson,  2  B.  &  C.  540  ;  Whitehouse  v. 
Frost,  12  East,  614;  Swanwick  v.  Sothern, 
9  A.  &  E.  895.  So,  in  Stoveld  v.  Hughes, 
14  East,  308,  where  the  vendor  assented 
to  the  sale  of  goods  by  his  vendee  to  a 
sub-vendee,  it  was  held  that  the  lien  as 
between  the  vendor  and  sub-vendee  was 
gone,  whatever  question  there  might  have 
been  between  the  original  parties. 

1  Maberley  v.  Sheppard,  10  Bing.  99, 
101,  per  Tindal,  C.  J.  ;  Goodall  v.  Skel- 
ton,    2    H.   Bl.    316 ;    Elmore   v.    Stone, 

1  Taunt.  458,  460;  Bill  v.  Bament,  9 
M.  &  W.  36  ;  Baldey  v.  Parker,  2  B.  &  C. 
37,  44  ;  Beaumont  V.  Bengeri,  5  C.  B.  301  ; 
Morton  v.  Tibbett,  15  Q.  B.  428,  438; 
Castle  V.  Sworder,  6  H.  &  N.  828,  revers- 
ing s.  c.  5  H.  &  N.  281  ;  Carter  v.  Tous- 
saint,  5  B.  &  Aid.  855,  859  ;  Kohde  v. 
Thwaites,  6  B.  &  C.  388,  392  ;  Smith  t;. 
Surman,  9  B.  &  C.  561,  577;  Howe  v. 
Palmer,  3  B.  &  Aid.  321  ;  Hanson  v.  Ar- 
mitage,  5  B.  &  Aid.  559  ;  Tempest  v.  Fitz- 
gerald, 3  B.  &  Aid.  680  ;  Proctor  v.  Jones, 

2  C.  &  P.  532,  535  ;  Phillips  v.  Bistolli, 
2  B.  &  C.  511  ;  Dodslev  v.  Varlev,  12  A. 
&  E.  632  ;  6  .Jur.  316  ;  Bushel  v.  Wheeler, 
8  Jur.  532,  534  ;  Wright  o.  Percival,  8 
L.  J.  Q.  B.  258,  260 ;  Holmes  v.  Hoskins, 


9  Ex.  753,  756,  per  Parke,  B.  ;  Marvin 
V.  Wallis,  6  E.  &  B.  726,  734, 2^e;r  Erie,  J.  ; 
Chajdin  v.  Rogers,  1  East,  192  ;  Boulter 
V.  Arnott,  1  C.  &  M.  333  ;  Marshall  v. 
Green,  1  C.  P.  Div.  36;  Pettitt  u  Mitchell, 
4  M.  &  G.  819,  841.  The  case  of  Hewes 
V.  Jordan,  39  Md.  472,  in  which  Alvey, 
J.,  delivers  the  judgment  of  the  court,  is 
one  of  the  mo.st  valuable  cases  we  have 
found  on  the  subject  of  the  acceptance  and 
actual  receipt  of  the  statute,  either  in  Eng- 
land or  in  this  country.  In  this  case  there 
was  a  sale  of  3,148  lbs.  of  butter  grease  by 
the  respondent  to  the  appellants.  The 
butter  grease  was,  at  the  time  of  the  bar- 
gain, in  the  cellar  of  the  respondent  in 
packages,  and  was  seen  by  the  agent  of  the 
appellants,  and  both  the  appellants  and 
tneir  agent  could  have  examined  the 
grease  before  its  removal,  but  did  not  do 
so,  except  that  the  agent  removed  the 
loose  heading  of  some  of  the  packages,  and 
inspected  the  top  of  those  packages,  but 
did  not  use  any  auger  or  trier,  or  in  any 
manner  probe  into  the  packages  to  ascer- 
tain the  condition  of  the  grease.  On  the 
same  day  of  the  sale,  the  appellants  re- 
ceived the  grease,  and,  upon  further  in- 
specting it,  claimed  to  reject  the  grease  on 
the  ground  that  it  was  not  merchantable, 
because  of  an  undue  quantity  of  salt  in  it ; 
and  gave  due  notice  of  their  objection  to 
the  respondent.  In  an  action  for  the  price, 
the  jury  were  instructed,  in  accordance 
with  what  we  have  shown  to  be  the  falla- 
cious statement  of  the  law,  bv  Lord  Camp- 
bell, C.  J.,  in  Morton  v.  Tibbett,  15  Q.  B. 
428,  that  the  acceptance  and  actual  receipt 
of  the  statute  need  not  be  absolute  and  un- 
qualified, but  might  be  such  as  would  not 
preclude  the  appellants  from  questioning 
the  quantity  or  quality  of  the  goods,  or  in 
any  way  disputing  that  the  contract  had 
been  fully  performed  by  the  respondent. 
The  jury  having  found  for  the  respondent 
(the  vendor),  the  court,  on  appeal,  held 
that  there  was  evidence  from  wliioh  the 
jury  might  have  found  both  acceptance 
and  actual  receipt  of  the  goods  witliin  the 
meaning  of  the  statute  ( Kershaw  u.  Ogdeu, 


PART   VII.] 


THE   ACTUAL   RECEIPT. 


477 


of  stoppage  in  transitu  was  not  gone  ;  ^  where  tlie  vendor  conld  not 


3  H.  &  C.  717)  ;  but  that  the  direction  of 
the  court  below  to  the  jury  was  wrong,  and 
tended  to  mislead  them  ;  and  ordered  a 
new  trial.  We  make  the  following  selec- 
tions from  the  judgment  of  Alvey,  J.  : 
"  From  the  plain  meaning  of  the  terras  of 
the  statute  itself,  independent  of  all  au- 
thority, the  concurrence  of  two  distinct 
acts  on  the  part  of  the  vendee  would  seem 
to  be  required.  He  must  accept,  and  he 
must  actually  receive  part  of  the  goods  in 
order  to  render  the  contract  binding  on 
him.  There  may  be  an  actual  receipt 
without  any  acceptance,  and  there  may  be 
an  acceptance  without  any  receipt.  But 
if  both  these  acts  concur,  with  the  inten- 
tion of  the  parties  that  the  vendee  shall 
take  possession  of  the  goods  under  the  con- 
tract as  owner,  then  the  latter  must  be 
taken  as  having  made  a  final  election  to 
accept  the  goods,  or  such  part  of  them  as 
he  may  have  actually  received  as  his  prop- 
erty, and,  at  the  same  time,  assent  to  their 
being  such  as  will  ratify  the  contract ; 
and  acceptance  and  receipt  being  thus 
complete,  to  bind  the  contract,  the  vendee 
cannot  afterwards  withdraw  his  acceptance 
and  reject  the  goods,  except  it  be  on  the 
ground  of  fraud. 

"  0[)posed  to  the  general  proposition 
that  there  is  no  such  actual  acceptance  as 
the  statute  contemplates,  so  long  as  the 
vendee  continues  to  have  the  right  to  ob- 
ject to  the  quantity  or  quality  of  the  goods, 
we  have  the  judgment  of  Lord  Camfibell, 
in  the  case  of  Morton  v.  Tibbett,  15  Q.  B. 
428.  .  .  .  Lord  Campbell,  in  the  course  of 
his  very  elaborate  judgment,  maintained, 

I  Bushel  V.  Wheeler,  8  Jur.  532  ;  Bal- 
dey  V.  Parker,  2  B.  &  C.  37,  44;  Norman 
V.  Phillips,  14  M.  &  W.  277;  Farina  v. 
Howe,  16  M.  &  W.  119  ;  Morton  v.  Tib- 
betts,  15  Q.  B.  428  ;  Meredith  v.  Meigh, 
2  E.  &  B.  364  ;  Nicholson  v.  Bower,  1  E. 
&  E.  172,  175  ;  Smith  v.  Hudson,  6  B.  & 
S.  431  ;  Harman  v.  Anderson,  2  Camp. 
343  ;  Lucas  v.  Dorrien,  7  Taunt.  278  ; 
Hurry  r.  Mangles,  1  Camp.  452;  Heinckey 
V.  Earle,  6  E.  &  B.  410;  Craven  v.  Kyder, 
6  Taunt.  443.  As  to  the  delivery  which 
is  sufficient  to  defeat  the  right  of  stoppage 
ill  transitu,  see  Hammond  v.  Anderson, 
1  B.  &  P.  N.  R.  69  ;  Scott  v.  Pettit,  3  B. 
&  P.  469;  Whitehouse  v.  Frost,  12  East, 
614;  Stoveld  v.  Hughes,-  14' East,  308; 
Harman  v.  Anderson,  2  Camp.  242;  With- 
ers V.  Lyss,  4  Camp.  237  ;  Shear  v.  Trav- 
ers,  lb.  251 ;  Lucas  v.  Dorrein,  1  B.  Moore, 
29;  Oreen  v.  Haythorne,  1  Stark.  447; 
Hawes  v.  Watson,  2  B.  &  C.  540.  As  to 
the  carrier,  qud  carrier,  not  being  the 
agent  of  the  ven  lee  to   actually  icceive 


what  the  case  did  not  really  require  to  be 
maintained,  that  the  acceptance  contem- 
plated by  the  statute  is,  in  all  cases,  to 
precede,  or  at  any  rate  to  be  contemporan- 
eous with,  the  actual  receipt  of  the  goods, 
and  not  a  subsequent  act  ;  that  there  may 
be  an  acceptance  and  receipt  within  the 
statute  without  the  purchaser  having  ex- 
amined the  goods,  or  done  anything  to 
preclude  him  from  contending  that  they 
do  not  corresjjond  with  the  contract  ;  and 
that  the  acceptance  to  let  in  parol  evidence 
of  the  contract  is  a  ditferent  acceptance 
from  that  which  afi"ords  conclusive  evidence 
of  the  contract  having  been  fulfilled. 

"  Now,  it  may  be  readih'  conceded, 
that  the  question,  whether  there  has  been, 
in  any  particular  case,  such  acceptance 
and  actual  receipt  of  a  part  of  the  goods  as 
will  bind  the  contract,  may  be  quite  dif- 
ferent and  distinct  from  that  as  to  whether 
the  contract  has  been  fulfilled  in  respect 
to  quantity  and  qualit}^  of  the  residue  of 
the  goods,  where  the  vendee  has  had  no 
opportunity  of  examining  the  goods  that 
may  be  offered  in  fulfilment  of  the  con- 
tract, and  where  he  has  done  nothing  to 
preclude  hinjself  from  the  exercise  of  the 
right  to  object  that  they  do  not  correspond 
with  those  actually  received  by  him. 
The  effect  of  the  acceptance  and  actual 
receipt  of  part  of  the  goods,  however  small, 
is  to  prove  the  contract  of  sale,  and  it  is 
not  inconsistent  with  this  that  the  vendee 
should  have  the  right,  with  respect  to  the 
residue  of  the  goods  when  offeretl  in  fulfil- 
ment of  the  contract,  to  object  that  they 
are  not  such  in  quantity  and  quality  as 

the  goods,  to  put  an  end  to  the  stoppage 
in  transitu,  and  to  absolutely  vest  the  pos- 
session of  the  goods  in  the  vendee  to  sat- 
isfy the  actual  receipt  of  the  statute,  see 
Astey  V.  Emery,  4  M.  &  S.  262  ;  Hanson 
V.  Armitage,  5  B.  &  Aid.  537;  Johnson  v. 
Do(lg.snn,  2  M.  &  W.  656;  Norman  v.  Piiil- 
lips,  14  M.  &  W.  277;  Hunt  v.  Hccht, 
8  Ex.  814;  Acebal  v.  Levy,  10  Biug.  376; 
Men'dith  v.  Meig,  2  E.  k  B.  370;  Cusack 
V.  Kobinson,  1  B.  &  S.  299  ;  Hart  v. 
Bush,  E.  B.  &  E.  494  ;  Smith  v.  Hudson, 

6  B.  &  S.  431  ;  Bushel  v.  Wheeler,  8  Jur. 
532  ;  Hart  v.  Sattley,  3  Camp.  528  ;  Bill 
V.  Bament,  9  M.  &  W.  36  ;  Howe  v. 
Palmer,  3  B.  &  Aid.  321  ;  Bentell  v. 
Burn,  3  B.  &  C.  423;  Z winger  v.  Sarnuda, 

7  Taunt.  265;  Gorman  v.  Bodly,  2  C.  k  K. 
145  ;  Morton  v.  Tibbett,  15  Q.  B.  428  ; 
Coombs  V.  The  Bristol  &  Exeter  Ry.  Co., 
3  H.  &  N.  510;  Currie  v.  Anderson,  2  E. 
&  E.  592 ;  Nicholson  v.  Bower,  1  E.  &  E. 
172. 


478 


COMMENTARIES   ON   SALES. 


[book  IV 


sustain  an  action  for  the  goods  as  for  goods  sold  and  delivered,^ 
and  where  the  vendee  could  not  maintain  trover  for  their  wrong- 
ful witliholding.2 

But  it  is  quite  clear  that  the  same  principle  does  not  apply,  where 
there  have  been  an  acceptance  and  an  actual  receipt  of  some  part 


the  contract  requires  ;  and  in  such  case, 
the  question  in  dispute  can  only  be  deter- 
mined by  the  aid  of  parol  evidence.  But 
in  all  cases  where  the  goods  bargained  for 
have  been  accepted  and  actually  received 
by  tlie  vendee,  he  is  thereby  precluded,  in 
the  absence  of  fraud,  from  oljjecting  that 
they  do  not  correspond  with  the  contract. 
Any  otlier  construction  would  certainly 
tend  to  let  in  all  the  evils  that  were  in- 
tended to  be  excluded  by  the  particular 
provision  of  the  statute  ;  and  hence,  the 
proposition  maintained  by  Lord  Campbell 
in  Morton  v.  Tibbett,  that  there  may  be 
an  aceeptani'c  and  receipt  within  the  stat- 
ute without  the  purchaser  having  examined 
the  goods,  or  done  anything  to  preclude 
him  from  contending  that  they  do  not  cor- 
respond with  the  contract,  has  found  but 
partial  favor  with  the  judges  of  Westmin- 
ster Hall.  Some  of  those  judges  have 
openly  expressed  their  dissent  from  it ; 
and  while  it  may  be  taken  as  the  estab- 
lished construction  of  the  statute  by  the 
Queen's  Bench,  it  has  failed  to  receive  the 
sanction  of  the  Court  of  Exchequer.  Hunt 
V.  Hecht,  8  Ex.  814  ;  Coombs  v.  Bristol 
&  Exeter  Ry.  Co.,  3  H.  &  N.  510.  See 
also  the  recent  case  of  Smith  v.  Hudson, 
6  B.  &  S.  431.  As  we  have  seen,  the  act 
of  acceptance  is  not  confined  to  any  parti- 
cular order  of  lime  in  reference  to  the  act- 
ual receipt  of  the  goods.  On  the  contrary, 
acceptance  may  precede,  as  in  cases  where 
the  vendee  has  inspected  and  approved  the 
specific  goods  i)urchased,  as  well  as  be 
contemporaneous  with,  or  subsequent  to, 
the  actual  receipt  of  the  goods.  This  was 
decided  in  the  case  of  Cusack  v.  Robinson, 
1  B.  &  S.  299.  And,  in  the  present  case, 
we  think  there  was  evidence  from  which 
the  jury  might  have  found  both  acceptance 
and  actual  receipt  of  the  goods  within  the 
meaning  of  the  statute.  Kershaw  v.  Og- 
den,  3  H.  &  C.  717."  And  the  Court  of 
Appeal  held,  that  the  judge  on  the  trial, 
instead  of  instructing  the  jury  as  he  did, 
in  accordance  with  the  erroneous  obiter 
dictum  of  Lord  Campbell,  C.  J.,  in  Mor- 
ton V.  Tibbett,  15  Q.  B.  428,  should  have 
left  the  question  to  the  jur3'  whether  there 
had  been  an  acceptance  and  actual  receipt 
by  the  vendees  of  the  butter-grease  with 
an  intention  of  taking  possession  as  own- 
ers, the  facts  of  the  case  showing  such  an 
acceptance  and  actual  receipt  as  would  sus- 
tain the  affirmative  of  such  finding  by  the 


jury  on  the  question  being  submitted  to 
them.  See  Clarke  v.  Marriott,  9  Gill,  331  ; 
Jones  V.  Mechanics'  Bank,  29  Md.  293. 

1  Goodhall  v.  Skelton,  2  H.  Bl.  316  ; 
Hodgson  V.  Le  Bret,  1  Camp.  233;  Ander- 
son V.  Scott,  lb.  235,  n.;  Wright  v.  Per- 
cival,  8  L.  J.  N.  s.  Q.  B.  258  ;  Baines  v. 
Jevons,  7  C.  &  P.  288  ;  Johnson  v.  Dodg- 
son,  2  M.  &  W.  653  ;  Farina  v.  Howe,  16 
M.  &  W.  119;  Coombes  v.  The  Bristol  & 
Exeter  Ry.  Co.,  3  H.  &  N.  510  ;  Swain  v. 
Shepherd,  1  M.  &  Eob.  223;  Coats  v. 
Chaplin,  3  Q.  B.  483  ;  Turley  v.  Bates, 
2  H.  &  C.  200  ;  Meredith  ?■.  Meig,  2  E.  & 
B.  364;  Simmons  v.  Swift,  5  B.  &  C.  857; 
Cusack  V.  Robinson,  1  B.  &  S.  299;  Smith 
V.  Hudson,  6  B.  &  S.  431  ;  Kershaw  v. 
Ogden,  3  H.  &  C.  717. 

2  Proctor  V.  Jones,  2  C.  &  P.  532,  535. 
In  this  case  Best,  C.  J.,  says  :  "  It  cannot 
be  said  in  the  present  case  that  the  de- 
fendant actually  received  the  goods.  Could 
the  vendee  maintain  trover  if  the  goods 
were  not  delivered  ?  Certainly  he  could 
not,  for  the  seller  would  have  a  lien  on 
them  for  the  price,  as  there  was  no  stipu- 
lation as  to  payment  at  a  future  time.  It 
is  the  intention  of  the  statute  that  there 
should  be  as  complete  a  delivery  as  can  be 
according  to  the  nature  of  the  article." 
And  see  Simmons  v.  Swift,  5  B.  &  C.  857; 
Goodall  V.  Skelton,  2  H.  Bl.  316,  and 
cases  in  the  next  preceding  notes.  To 
effect  an  acceptance  and  actual  receipt  of 
the  whole  of  the  goods  to  satisfy  the  stat- 
ute of  fraud.s,  the  goods  must  necessarily, 
by  the  very  l^acts  of  their  acceptance  and 
actual  receipt,  be  specific,  ascertained 
goods.  So,  as  trover  can  only  be  main- 
tained for  specific  goods,  unless  their  indi- 
viduality can  be  ascertained  the  action  of 
trover  cannot  be  resorted  to  in  respect  of 
them,  and  their  identit}'  not  being  known, 
the  stopping  of  them  in  transitu  is  not  in 
the  nature  of  things  possible.  This  usu- 
ally occurs  where,  consistently  with  the 
contract,  any  commodities  of  the  vendor 
answering  a  particular  description  might 
be  supplied  ;  and  in  these  cases  the  ven- 
dee, though  he  were  solvent,  could  not 
maintain  trover.  The  principle  of  these 
cases  is  clearly  developed  in  the  judgment 
of  the  court  in  Austen  v.  Craven,  4  Taunt. 
644;  White  v.  Wilks,  5  Taunt.  176.  See 
also  Busk  V.  Davis,  2  II.  &  S.  397;  Wal- 
lace V.  Breeds,  13  East,  522;  Hawes  v. 
Watson,  Ry.  &  M.  6,  10,  n. 


PART    VII.]  THE   ACTUAL   RECEIPT.  479 

of  the  goods  only,  and  where  the  claim  is  not  that  there  have 
been  an  acceptance  and  an  actual  receipt,  —  a  transmission  of  the 
property  and  of  the  actual  possession  in  and  of  the  whole  of  the 
goods.  Where  there  have  been  an  acceptance  and  an  actual  re- 
ceipt of  some  part  of  the  goods,  although  the  lien  and  the  right  of 
stoppage  in  transitu  may  continue  as  to  the  residue,  there  is  a  con- 
tract deemed  good  which  can  be  enforced  by  either  vendor  or  ven- 
dee. But,  as  in  the  case  of  non-specific,  non-ascertained  goods, 
as  there  may  not  be  even  the  passage  of  tlie  property  to  the  ven- 
dee, much  less  the  transfer  of  the  possession  to  him,  in  the  resi- 
due of  the  goods  which  have  not  been  actually  received,  it  is 
obvious  that  the  continuance  of  the  lien,  or  the  right  of  stoppage  in 
transitu,  or  the  right  to  bring  an  action  for  goods  sold  and  deliv- 
ered, is,  in  such  case,  no  more  a  test  as  to  whether  the  require- 
ments of  the  section  have  been  met,  than  it  would  be  where  the 
verbal  contract  has  been  made  binding  by  a  note  or  memorandum 
in  writing,  or  by  the  payment  of  earnest-money  or  a  part  pay- 
ment. Consequently,  where  either  the  lien  or  the  right  of  stop- 
page in  transitu  can  be  enforced,  or  an  action  lie  for  the  goods  as 
for  goods  sold  and  delivered,  where  the  contract  is  made  good  by 
the  note  or  memorandum  in  writing,  or  by  the  part  payment,  it 
can  equally  as  well  be  so  where  it  is  made  good  by  the  acceptance 
and  actual  receipt  of  a  part  of  the  goods ;  there  being  just  the 
same  transfer  of  the  property  in  the  goods,  and  no  greater  trans- 
fer of  the  actual  possession  of  tlie  goods  — except  in  the  one  case 
of  the  part  actually  received  —  in  the  one  case  than  in  either  of 
the  others.  Then,  while  it  is  true,  that  an  action  for  goods  sold 
and  delivered  will  lie  in  every  case  where  there  has  been  an  act- 
ual transfer  of  the  property  and  the  actual  possession  in  and  of 
the  whole  of  the  goods,  to  the  vendee  ;  and  where  such  action  will 
not  lie,  it  is  then  conclusive  that  there  have  not  been  the  accept- 
ance and  the  actual  receipt  of  the  whole  of  the  goods  to  satisfy  the 
statute  ;  yet  the  converse  of  this  is  not  also  true,  i.  e.,  it  is  not 
true  that  the  action  will  not  lie  as  for  goods  sold  and  delivered 
unless  there  have  been  an  acceptance  and  an  actual  receipt  of  the 
whole  of  the  goods.  For  there  are  cases  which  liold  that  the  ac- 
tion for  goods  sold  and  delivered  will  lie,  where  there  is  a  good 
contract  for  the  sale  of  goods  so  that  the  proj^erty  in  them  lias 
passed  to  the  vendee  by  virtue  of  the  contract,  though  the  right  of 
stoppage  in  transitu  continues.  It  therefore  follows  that  in  all 
cases  where  the  action  for  goods  sold  and  delivered  will  lie  on  a 
contract  for  the  sale  of  goods  where  the  contract  is  made  good  by 
the  note  or  memorandum  in  writing,  or  the  part  payment  of  the 
purchase-money,  it  will  also  necessarily  lie  where  it  is  made  good 


480  COMMENTARIES   ON    SALES.  [bOOK   IV. 

by  the  acceptance  and  actual  receipt  of  a  part  of  the  goods  ;  the 
contract  being  equally  as  effective  to  pass  the  property  and  to  give 
the  right  of  action  for  goods  sold  and  delivered  to  precisely  the 
same  extent  in  the  one  case  as  in  either  of  the  others. 

In  our  investigation  of  the  subject,  we  have  seen,i  contrary  to 
the  statements  of  Blackburn  and  Benjamin,  in  their  works  on 
Sales,  that  where  there  have  not  been  an  acceptance  and  an  act- 
ual receipt  of  part  of  the  goods  by  the  purchaser,  and  the  reli- 
ance is  placed  on  the  receipt  of  the  carrier  to  meet  the  require- 
ments of  the  actual  receipt  of  the  statute,  such  a  receipt  is  not  the 
receipt  of  the  vendee,  unless  the  carrier  is  the  vendee's  own  car- 
rier, to  the  full  extent  that  the  delivery  to  him  is  a  complete  and 
ultimate  delivery  to  the  vendee  himself,  so  that  the  vendor's  right 
of  stoppage  in  transitu  is  gone.  "We  have  seen  -  that  this  applies 
not  only  to  the  carrier,  but  to  the  warehouseman  as  well.  There- 
fore, where  the  holding  of  tliese  is  not  the  actual  holding  of  the 
vendee,  so  that  the  manual  or  constructive  possession  of  the  goods 
is  in  him,  there  is  no  actual  receipt  by  him  to  satisfy  the  statute. 
And  we  have  also  pointed  out,  that,  where  the  actual  receipt  of 
the  whole  of  the  accepted  goods  is  relied  on  to  satisfy  the  statute, 
there,  as  the  vendee  can  maintain  an  action  of  trover,  so  the  ven- 
dor can  always  sustain  an  action  for  goods  sold  and  delivered  ; 
and,  unless  he  can  sustain  such  action,  then  there  have  not  been 
the  acceptance  and  the  actual  receipt  of  the  goods  by  the  vendee 
to  satisfy  the  statute.  But,  the  converse  of  this  is  not  necessarily 
true.  At  common  law,  when  there  is  a  complete  contract,  it  has 
been  held  that  the  delivery  of  goods  to  a  carrier  (though  not  the 
carrier  of  the  vendee  so  that  a  delivery  to  him  would  put  an  end 
to  the  stoppage  in  transitu),  for  the  consignee,  is  a  delivery  to  the 
consignee,  or  vendee,  —  and  this  is  significant,  the  delivery  may 
be  alike  to  the  consignee  whether  he  be  the  vendee  or  not,  —  so 
that  the  property  may  pass  to  the  consignee ;  the  risk  of  loss,  and 
therefore,  the  insurable  interest,  will  be  in  him,  as  well  as  the  right 
of  action  for  injury  to  the  property,  or  for  its  recovery.  In  addi- 
tion to  this,  from  the  loose  and  improper  manner  in  which,  as  we 
have  pointed  out,  the  term  "  accept "  is  used  in  many  of  the  Eng- 
lish cases,  as  though  it  were  synonymous  with  the  actual  receipt 
of  the  statute,  we  find  it  repeatedly  stated  that  the  carrier  is  "  not 
the  vendee's  agent  to  accept  the  goods,"  when,  as  the  cases  them- 
selves show,  all  that  was  meant  by  this  was  that  the  carrier  was  not 
the  vendee's  agent  to  actually  receive  the  goods  for  him  to  satisfy 
the  statute.  It  is  from  these  two  facts  that  we  find  it  repeated  by 
nearly  all  the  English  and  American  writers,  that  "a  carrier, 

^  See  supra,  p.  363  et  seq.  2  Supra,  p.  367. 


PART   VII.]  THE    ACTUAL   RECEIPT.  481 

although  not  an  agent  to  accept,  is  an  agent  to  receive  "  the  goods 
for  the  vendee,  to  satisfy  the  statute.^  As  we  intimated  that  we 
would  consider  the  subject  in  this  Part,  we  refer  to  some  of  the 
authorities  on  the  subject. 

The  principle  of  the  passage  of  property  by  a  sale  was  laid 
down  as  long  ago  as  Tr.  8  W.  3  (a.  d.  1696),  in  Knight  v. 
Hopper,^  in  an  action  for  the  price  of  100  pieces  of  muslins, 
to  be  taken  away  at  ten  pieces  at  a  time,  and  paid  for  as 
taken  away.  It  was  held  by  Holt,  C.  J.,  that  the  pieces  being 
marked  and  sealed,  the  property  was  altered  immediately,  and 
they  remained  only  as  a  security  for  the  money .^  And  in  God- 
frey V.  Furzo  *  (a.  d.  1733),  it  was  held  that  if  one  send  goods  to 
B.,  beyond  sea,  to  the  use  of  B.,  and  before  these  goods  are  paid 
for  B.  dies  insolvent,  the  shipper  cannot  have  his  goods  again. 
The  property,  by  the  shipment,  passed  to  the  consignee.  And 
where  a  tradesman  in  London,  by  order  of  a  tradesman  in  the 
country,  sent  goods  to  the  latter,  who  did  not  appoint  or  name  the 
carrier,  and  the  carrier  embezzled  the  goods ;  Eyre,  C.  J.,  held 
that  the  trader  in  the  country  must  stand  to  the  loss.^  And  see 
Davis  V.  James,^  where  it  was  claimed  that  the  action  against  the 
carrier  for  the  loss  of  the  goods  should  have  been  brought  in  the 
name  of  the  consignee,  as  the  consignor  had  parted  with  his  prop- 
erty upon  the  delivery  of  the  goods  to  the  carrier ;  but  the  court 
held  that  as  there  the  consignor  had  agreed  with  the  carrier  and 
was  to  pay  him,  the  action  was  properly  brought  by  the  consignor, 
under  the  agreement,  even  though  the  property  had  passed  to  the 
consignee.''  In  Dawes  v.  Peck,^  Lord  Kenyon  distinguishes  these 
cases  on  the  ground  tliat  the  consignors  stood  in  the  character  of 
insurers  for  the  safe  arrival  of  the  goods ;  and  by  Grose,  and  Le 
Blanc,  JJ.,  on  tlie  ground  of  special  agreements  between  the  con- 
signors and  carriers. 

In  Vale  v.  Baylc  ^  (a.  d.  1775)  the  action  was  for  goods  sold 
and  delivered.  The  vendee  ordered  the  goods  sent  by  land  car- 
riage, and  they  were  accordingly  so  sent ;  there  being  no  other 
mode  of  land  carriage  than  that  by  which  they  were  sent.  The 
goods  were  lost  on  tlie  road.  The  vendee  was  held  liable  for  the 
price  in  this  form  of  action.     Lord  Mansfield,  in  delivering  judg- 

1  See  Blackhum  on  Sales,  2cl  ed.,  17,  2  Yes.  Sen.  586;  Mace  v.  Cadell,  Cowp. 
22,  and  the  other  authorities  cited  ante,  2-33  ;  Copeman  v.  Gallant,  1  P.  Wms. 
p.  .36.'?,  n.  4.  314. 

2  Cas.  temp.  Holt,  8.  65  Burr.  2680. 

3  8.  c.  Skinner,  647.  7  ^nd  see  Mooro  v.  Wilson,   1  T.  R. 

*  3  P.  Wms.  185.  659. 

*  N.   P.   case   at   Shrewsbury  Assizes,  8  g  T.  R.  330,  333. 
cited  3  P.  Wms.  185.     And  see  Snee  v.          »  1  Cowp.  294. 
Prescot,  1   Atk.  248 ;   Ex  parte  Dumas, 

TOL.    II.  31 


482  COMMENTARIES  ON  SALES.  [BOOK  IV. 

meiit,  said  :  "  If  a  vendor  take  upon  himself  actually  to  deliver  the 
goods  to  the  vendee,  he  stands  to  all  risks ;  but  if  the  vendee 
order  a  particular  mode  of  conveyance,  the  vendor  is  excused. 
With  regard  to  the  question  between  a  vendor  and  the  general 
creditors  of  a  vendee,  as  in  the  case  of  Birkett  v.  Jenkins,^  a  ven- 
dor before  actual  possession  by  the  vendee  has  a  lien  upon  the 
goods  he  sends ;  and  if  he  can  get  them  in  transitu^  to  be  sure  he 
has  the  benefit  of  that  lien.  But  that  has  no  relation  to  a  trans- 
action, as  this  is,  between  vendor  and  vendee."  Here, the  "act- 
ual possession"  referred  to,  to  defeat  the  lien,  which  is  continued 
by  the  transitus^  is  virtually  in  terms  the  very  "  actual  receipt " 
of  the  statute,  and  until  that  "  actual  "  receipt  or  possession  in  at 
least  some  part  of  the  goods  is  in  the  vendee,  the  statute  is  not 
satisfied ;  even  though  the  action  for  goods  sold  and  delivered 
may  lie  before  the  goods  get  into  the  actual  possession  or  receipt 
of  the  vendee,  as  in  Vale  v.  Bayle.^ 

In  Dawes  v.  Peck,^  it  was  held  that  if  the  consignor  of  goods 
deliver  them  to  a  particular  carrier,  by  order  of  the  consignee,  and 
they  be  afterwards  lost,  the  consignor  cannot  maintain  an  action 
against  the  carrier  for  the  loss,  although  he  paid  for  the  booking 
(but  not  for  the  carriage)  of  the  goods ;  the  action  being  in  the 
consignee  in  whom,  by  the  shipment,  the  property  vests,  and  upon 
whom  the  risk  of  loss  falls.  Counsel  here  contended  that  as, 
"  until  a  deliver^/  in  fact "  to  the  consignee  a  latent  right,  to  be 
exercised  by  the  stoppage  in  transitu,  remains  in  the  vendor  even 
as  against  the  vendee,  the  carrier  ought  not  to  be  permitted  to  dis- 
pute the  property  in  the  goods  of  the  person  from  whom  he  re- 
ceived them.  Here,  the  "  delivery  in  fact "  again  represents  the 
actual  receipt  of  the  statute ;  which,  as  we  have  seen,  is  satisfied, 
when  the  goods,  after  the  transitus  has  terminated,  are  in  a  ware- 
house, for  the  vendee,  although  only  constructively  then  are  they 
in  his  actual  receipt  or  possession.  But,  under  the  complete  con- 
tract, dehors  the  statute,  the  property  was  held,  in  Dawes  v. 
Peck,  to  have  been  vested  in  the  consignee,  by  the  delivery  of  the 
goods  according  to  his  order  to  the  carrier,  Grose,  J.,  saying : 
"  By  such  delivery  the  goods  became  the  property  of  the  con- 
signee ;  he  was  liable  to  be  sued  for  the  value  of  them  ;  and  it  is 
admitted  that  he  might  have  maintained  an  action  for  any  loss  or 
injury  happening  to  them  by  the  default  of  the  carrier."  * 

In  Dutton  v.  Solomonson,^  it  was  held  that  at  common  law  the 
delivery  of  goods  hy  the  vendor  on  behalf  of  the  vendee,  to  a  car- 

1  Easter,  11  Geo.  3,  B.  R.  Mitchell  v.  Ede,  11  A.  &  E.  888  ;  Browne 

2  1  Cowp.  294.  .  V.  Hare,  3  H.  &  N.  483. 
8  8  T.  R.  330.  6  3  B.  &  p.  552. 

*  See  Richardson  v.  Dunn,  2  Q.  B.  218; 


PART   VII.]  THE   ACTUAL  RECEIPT.  483 

rier  not  named  by  the  vendee,  is  a  delivery  to  the  vendee.  Lord 
Alvanley,  C.  J.,  in  delivering  the  judgment  of  the  court,  sustain- 
ing, on  this  point,  an  action  for  goods  sold  and  delivered,  said  : 
"  The  first  objection  in  this  case  is,  that  the  delivery  of  the  goods 
to  the  carrier  was  no  delivery  to  the  person  who  ordered  them, 
and  therefore  in  that  point  of  view  this  action  was  commenced  too 
soon,  the  writ  liaving  been  sued  out  before  the  arrival  of  the  goods 
in  London.  When  this  point  was  first  mentioned  I  was  surprised, 
for  it  appeared  to  me  to  be  a  proposition  as  well  settled  as  any  in. 
the  law,  that  if  a  tradesman  order  goods  to  be  sent  by  a  carrier, 
though  he  does  not  name  any  particular  carrier,  the  moment  the 
goods  are  delivered  to  the  carrier  it  operates  as  a  delivery  to  the 
purchaser  ;  the  whole  property  immediately  vests  in  him  ;  he  alone 
can  bring  an  action  for  any  injury  done  to  the  goods  ;  and  if  any 
accident  happen  to  the  goods  it  is  at  his  risk.  The  only  exception 
to  the  purchaser's  right  over  the  goods  is,  that  the  vendor,  in  case 
of  the  former  becoming  insolvent,  may  stop  them  in  transitu. ^^ 
This  is  when  there  is  a  complete  contract  at  common  law. 

In  Swain  v.  Shepherd,^  the  distinction  is  taken  by  Parke,  J., 
thus  :  "  Generally  speaking,  where  goods  of  a  fair,  merchantable 
quality  are  forwarded  in  pursuance  of  a  written  order,  which  binds 
the  person  giving  the  order  to  receive  the  goods,  the  property 
passes  to  that  person  by  the  delivery  to  the  carrier,  and  he  is  the 
proper  person  to  sue  the  carrier  if  the  goods  are  lost ; "  but  where 
the  goods  are  sent  merely  for  approval,  no  property  passes  to  the 
consignee  until  he  receives  and  adopts  the  goods.  There  is  in  this 
latter  case  no  more  to  pass  the  property  in  the  goods  than  there  is 
under  the  Statute  of  Frauds  where  there  is  no  memorandum  in 
writing  of  the  contract,  no  part-payment,  and  no  acceptance  and 
actual  receipt  of  the  goods.  There  is  quite  an  analogy  between 
the  two  cases. 

The  doctrine  at  common  law  was  laid  down  to  the  same  effect 
by  Lord  Brougham,  in  the  House  of  Lords,  in  Dunlop  v.  Lambert,^ 
thus  :  "  It  is  no  doubt  true  as  a  general  rule,  that  the  delivery  by 
the  consignor  to  the  carrier  is  a  delivery  to  tlie  consignee,  and 
that  the  risk  is,  after  such  delivery,  the  risk  of  the  consignee. 
This  is  so  if,  without  designating  the  particular  carrier,  the  con- 
signee directs  that  the  goods  shall  be  sent  by  the  ordinary  convey- 
ance ;  the  delivery  to  the  ordinary  carrier  is  then  a  delivery  to 
the  consignee,  and  the  consignee  incurs  all  the  risk  of  the  car- 
riage. And  it  is  still  more  strongly  so  if  the  goods  are  sent  by  a 
carrier  specially  pointed  out  by  the  consignee  himself,  for  such 
carrier  then  becomes  his  special  agent."     But,  while  it  was  held 

1  1  M.  &  Rob.  223.  2  6  ci.  &  F.  600. 


484  COMMENTARIES   ON    SALES.  [bOOK   IV. 

tliat  this  was  generally  true,  yet  it  was  further  held,  that  if  the 
consiii-nor  make  a  special  contract  with  the  carrier,  such  contract 
supersedes  the  necessity  of  showing  the  ownership  in  the  goods, 
and  the  consignor  may  maintain  the  action,  though  those  goods 
mav  be  the  property  of  the  consignee  ;  that  the  question  whether 
the  goods  are  delivered  to  the  carrier  at  the  risk  of  the  consignor 
or  consignee  is  a  question  for  the  jury ;  and  that  the  delivery  of 
o-oods  to  a  carrier  by  a  consignor  does  not  necessarily  vest  the 
property  in  them  in  the  consignee.  Very  clearly  it  does  not 
where  there  is  no  contract  under  which  the  property  in  the  goods 
passes;  or  where,  for  any  reason,  the  consignee  may  refuse  to 
receive  the  goods. ^ 

In  Freeman  v.  Birch ,2  Parke,  J.,  said  :  "  In  the  case  of  a  com- 
plete sale,  the  vendor  transmits  as  agent  for  the  vendee."  ^ 

In  Coats  V.  Chaplin  *  the  traveller  of  M.,  a  tradesman  residing 
in  London,  verbally  ordered  goods  for  M.,  of  plaintiff,  a  manufac- 
turer at  Paisley.  No  order  was  given  as  to  sending  the  goods. 
Plaintiff  gave  them  to  defendant,  a  carrier,  directed  to  M.,  to  be 
taken  to  him,  and  also  sent  an  invoice  by  post  to  M.,  who  received 
it.  The  goods  having  been  lost  by  defendant's  negligence,  and 
not  delivered  to  M.,  it  was  held  that  the  defendant  was  liable  to 
plaintiff.  Wightman,  J.,  said,  in  this  case :  "  Without  going  so 
far  as  to  hold  that  a  consignee  can  never  maintain  such  an  action 
as  this,  unless  the  requisites  of  the  Statute  of  Frauds  have  been  so 
satisfied  as  to  render  him  liable  to  an  action  for  goods  sold  and 
delivered  by  the  consignor,  it  is  enough  for  us  now  to  say  that  it 
has  in  no  case  been  held  that  the  property  passed  to  the  consignee 
by  the  consignor's  mere  delivery  to  a  carrier,  the  consignee  having 
given  no  order  whatever  for  the  sending." 

In  the  important  case  of  Cusack  v.  Robinson,^  where  there  was 
an  acceptance  of  the  goods  preceding  the  actual  receipt,  so  that 
the  question  of  the  actual  receipt  is  separated  from  the  accept- 
ance, it  was  there  held  that  the  receipt  by  the  warehouseman  was 
only  a  receipt  for  the  vendee  to  satisfy  the  statute,  because  the 
vendor's  lien  and  right  of  stopjmfje  in  transitu  had  terminated ; 
Lord  Blackburn  saying:  "The  intention  of  the  legislature  seems 
to  have  been  that  the  contract  should  not  be  good  unless  partially 

1  See,  furtlier,  Brown  v.  Hodgson,  2  Exchequer,  cited  in  Coats  v.  Chaplin, 
Camp.  36  ;  Joseph  v.  Knox,  3  Carnp.  320  ;  3  Q.  B.  486;  Fras^ano  v.  Lontr,  4  B.  &  C. 
Freeman  v.  Birch,  1  N.  &  M.  420  ;  King  219  ;  Alexander  v.  Cauher,  l'  H.  Bl.  20  ; 
V.  Meredith,  2  Camp.  639  ;  Moorsom  v.  Ky-  Hanson  i'.  Armitage,  5  B.  &  Aid.  557  ; 
iner,  2  M.  &  S.  303  ;  Sergent  v.  Morris,  Elmore  v.  Kingscote,  »B.  &  C.  583;  Hoad- 
3  B.  &  Aid.  277.  lev  v.  McLaine,  10  BilTg.  482. 

2  3  Q.  B.  492,  n.;  1  N.  &  M.  420.  "  *  3  Q.  B.  483. 

^  And  see  Morgan  v.  Sykes,  before  Lord  *  1  B.  &  S.  299,  310. 

Abinger,  C.  B.,  affirmed  by  the  Court  of 


PART    VII.]        ^  THE    ACTUAL   RECEIPT.  485 

executed,  and  it  is  partially  executed  if,  after  the  vendee  has  final- 
ly agreed  on  the  specific  articles  which  he  is  to  take  under  the 
contract  [which,  as  we  have  seen,  is  the  statutory  acceptance] 
the  vendor  with  the  vendee's  directions  parts  with  the  possession, 
and  puts  them  under  the  control  of  the  vendee  so  as  to  put  a  com- 
plete end  to  all  the  riyhts  of  the  unpaid  vendor  as  such.^^ 

And  as  we  have  previously  pointed  out,  so,  in  Cusack  v.  Robin- 
son,^ Blackburn,  J.,  recognized  that  in  Nicholson  v.  Bower,^  where 
it  was  held  that  there  had  been  no  acceptance  by  the  vendee  of 
the  goods,  the  actual  receipt  by  the  vendee  was  only  admitted  on 
the  ground  that  the  carriers  had  ceased  to  hold  the  goods  as 
carriers,  and  held  them  as  warehouseman  for  the  vendee,  "  under 
circumstances  that  might  have  been  held  to  put  an  end  to  the  un- 
paid vendor's  rights."  And,  in  the  same  way,  in  Smith  v.  Hudson,^ 
it  was  also  conceded  that  the  receipt  of  the  carrier  was  the  actual 
receipt  of  the  vendee  under  the  statute,  because  the  carrier  held 
the  goods  for  the  vendee  as  warehouseman,  with  the  vendor's  lien 
and  right  of  stoppage  in  transitu  gone. 

So,  in  Farina  v.  Home,^  the  receipt  of  the  warehouseman  was 
held  not  to  be  the  actual  receipt  of  the  vendee  until  the  former 
had  attorned  to  the  vendee  so  as  to  make  his  holding  the  actual 
holding  or  receipt  of  the  vendee.  In  this  case  the  actual  receipt  is 
severed  from  the  acceptance  ;  so  it  makes  the  point  clearer. 

In  Meredith  v.  Meig,^  Lord  Campbell,  referring  to  Bushel  v. 
Wheeler,  ^  treats  that  case  as  deciding  that  delay  by  the  vendee  in 
advising  the  vendor  that  the  goods  were  lying  in  the  carrier's 
warehouse,  might  be  evidence  that  "  he  had  received  them  him- 
self." And  in  Meredith  v.  Meig,^  Erie,  J.,  says :  "  Placing  goods 
on  board  ship  is  good  evidence  of  a  delivery  in  support  of  a  count 
for  goods  sold  and  delivered ;  but  that  is  not  the  same  as  the 
question  under  the  seventeenth  section  of  the  Statute  of  Frauds. 
1  have  no  doubt  that  the  bill  of  lading,  which  is  the  symbol  of  the 
property,  may  be  so  received  and  dealt  with  as  to  be  equivalent  to 
an  actual  receipt  of  the  property  itself ;  but  in  the  present  case 
the  defendants  neither  acted,  nor  led  the  plaintiff  to  believe  that 
they  acted,  as  if  they  had  received  the  goods,  or  were  owners  of 
them." 

The  case  of  Coombs  v.  The  Bristol  &  Exeter  Railway  Co.** 
would  be  a  more  valuable  one  than  it  is  on  the  question,  if  it  were 
not  for  the  singular  confusion  which  pervades  so  many  of  the 
English  cases,  and  which  we  have  repeatedly  pointed  out,  in  their 

1  1  B.  &  S.  299,  307.  5  2  E.  &  B.  364. 

2  1  K.  &  E.  172.  «  15  Q.  B.  442  n. 

8  6  B.  &  S.  431.  »  "  2  E.  &  M.  at  p.  373. 

*  16  M.  &  W.  119,  123.  8  3  H.  &  N.  510. 


486  COMMENTARIES   ON   SALES.  [bOOK   IV. 

confounding  the  acceptance  with  the  actual  receipt,  as  though  the 
latter  necessarily  involved  the  former ;  or  as  though  the  accept- 
ance were  not,  as  the  statute  clearly  indicates  that  it  is,  an  entity, 
separate  and  apart  from  the  actual  receipt,  which  is  also  rendered 
necessary  to  make  the  contract  be  deemed  good.  Such  confusion 
is  very  manifest  in  the  previous  case  we  have  examined,^  where, 
when  the  judges  use  the  term  "  actual  receipt,"  a  consideration  of 
the  context  leaves  it  doubtful  whether  they  do  not  thereby  mean 
the  acceptance  as  well  as  the  actual  receipt  of  the  statute.  The 
same  difficulty  exists  in  Coombs  v.  The  Bristol  &  Exeter  Ry, 
Co.2  There  A.  agreed  verbally  to  buy  of  B.  all  the  whalebone  he 
could  procure  at  a  certain  price,  to  be  sent  by  a  particular  railway; 
A.  agreeing  to  pay  the  carriage.  Some  whalebone  to  an  amount 
exceeding  £10,  having  been  delivered  at  the  railway  station  by 
B.,  consigned  to  A.,  and  having  been  duly  invoiced  to  him,  was 
lost  in  the  transit.  B.  then  wrote  requesting  A.  to  make  a  claim 
against  the  company.  Counsel  in  this  case  claimed  that  as  the 
plaintiff  had  agreed  to  take  all  the  whalebone  sent  the  goods  were 
specific  goods.  We  are  inclined  to  think  the  contention  was  cor- 
rect, and  that  where  goods  are  thus  sold,  —  as  all  the  goods  of  a 
certain  mark,  or  all  of  the  goods  in  a  store,  or  all  the  whalebone  the 
vendee  may  be  able  to  procure,  —  that  this  makes  the  goods  spe- 
cific goods,  assented  to  by  the  vendee  as  the  actual  subject  of  the 
purchase  ;  and,  on  their  actual  receipt,  he  can  no  more  reject  them 
than  he  can  any  other  specific  goods  which  he  has  purchased,  and 
has  thus  "  accepted,"  as  in  Cusack  v.  Robinson  ^  and  the  numerous 
other  cases  where,  having  bought  ascertained  goods,  he  has  act- 
ually received  them. 

From  this  point  of  view.  Coombs  v.  The  Bristol  &  Exeter  Ry. 
Co.*  would  be  another  express  authority  tliat  the  receipt  of  a  car- 
rier, in  whose  hands  the  goods  are  subject  to  stoppage  in  transitu^ 
is  not  the  actual  receipt  of  the  vendee  required  by  the  statute. 
But  while  it  is  obvious  that  there  is  much  in  the  case  to  show 
that,  as  usual,  no  substantial  distinction  is  made  between  the  ac- 
ceptance and  actual  receipt  of  the  statute,  there  are  portions  of 
the  case  which,  expressis  verbis,  are  confined  to  the  actual  receipt 
of  the  statute.  Thus,  where  counsel  say  :  "  If  goods  which  have 
heen  ordered  are  delivered  to  a  carrier  named  by  the  purchaser, 
an  action  for  goods  sold  may  be  maintained;"  Martin,  B.,  an- 
swered :  "  That  is  so  if  there  is  a  valid  contract,  but  such  delivery 
is  not  sufficient  to  take  the  case  out  of  the  Statute  of  Frauds." 
And  counsel :   "  No  doubt  the  delivery  to  a  carrier  would  have 

1  Meredith  v.  Meig,  2  E.  &  B.  364.      /  «  1  B.  &  S.  299. 

2  3  H.  &  N.  510.  *  3  H.  &  N.  510. 


PART   VII.]  THE   ACTUAL   RECEIPT.  487 

been  a  valid  delivery  to  the  vendee,  if  there  had  been  a  complete 
sale  and  transfer  of  the  property  by  the  contract.  In  that  case 
the  seller  would  have  transmitted  the  goods  as  agent  for  the 
vendee."  So  Martin,  B.,  said  :  "  At  common  law,  upon  the  sale  of 
an  ascertained  chattel,  on  delivery  to  a  carrier,  the  property  vested 
in  the  vendee.  But  by  the  seventeenth  section  of  the  Statute  of 
Frauds, '  no  contract  for  the  sale  of  any  goods,  wares,  and  merchan- 
dises, for  the  price  of  £10  sterling,  or  upwards,  shall  be  allowed 
to  be  good,  except  the  buyer  shall  accept  part  of  the  goods  so  sold, 
and  actually  receive  [the  italics  are  his  own]  the  same,  or  give 
something  in  earnest  to  bind  the  bargain,  etc.,  or  that  some  note 
or  memorandum  in  writing  of  the  said  bargain  be  made  and 
signed,'  etc.  Therefore,  unless  one  of  these  things  have  happened, 
this  contract  of  sale  was  not  good ;  not  that  such  a  contract  is 
absolutely  void,  for  if  either  event  takes  place  at  any  time  after 
the  verbal  contract,  the  contract  becomes  good."  And  B  ram  well, 
B. :  "  The  only  way  in  which  there  was  a  delivery  to  the  defend- 
ants by  the  plaintiff  was  under  the  contract  of  sale.  But  the  con- 
tract of  sale  was  invalid,  and,  therefore,  no  authority  to  the 
defendants  to  receive  the  goods  for  him.  But  it  may  be  said  the 
contract  to  carry  was  made  in  the  name  of  the  plaintiff,  and  that 
he  might  ratify  it.  I  do  not  think  that,  in  fact,  the  contract  was 
made  in  the  name  of  the  plaintiff.  It  is  more  reasonable  to  hold 
that  the  consignor,  when  the  property  is  not  out  of  him,  does  not 
contract  for  the  consignee."  So,  Watson,  B.,  distinguishing  But- 
ton V.  Solomonson,!  says  of  it  that  there  "  it  was  said  that  de- 
livery to  a  carrier  was  delivery  to  the  vendee,  but  in  that  case 
there  was  a  perfect  contract,"  leaving  the  Statute  of  Frauds 
out  of  the  question. 

The  term  "  actual  receipt "  of  the  statute  is,  we  think,  exactly 
equivalent  to  the  "  actual  delivery,"  which  puts  an  end  to  the  right 
of  the  stoppage  in  transitu^  this  actual  delivery  being  met  where 
the  possession  has  vested  in  the  vendee,  manually,  constructively, 
or  symbolically  ;  in  either  case  putting  an  absolute  end  to  the 
vendor's  lien,  and  its  continuance,  the  right  of  stoppage  in  transitu. 
Thus,  in  Snce  v.  Prescott,^  Lord  Hardwicke  says  :  "  If  goods  were 
delivered  to  a  carrier  to  be  conveyed  to  A.,  and  while  the  carrier 
was  upon  the  road,  and  before  actual  delivery  to  A.  by  the  carrier, 
the  consignor  hears  that  A.,  his  consignee,  is  likely  to  become 
a  bankrupt,  or  is  actually  one,  and  countermands  the  delivery, 
and  gets  them  back  into  his  own  possession  again,  trover  will  not 
lie  by  the  assignees  of  A. ;  because  the  goods  while  they  were 
in  transitu  might  be  countermanded,"    This  was  approved  in  Ellis 

1  3  B.  &  P.  582.  2  1  Atk.  248. 


488  COMMENTARIES   ON   SALES.  [BOOK   IV. 

V.  Hunt,^  Lord  Kenyon,  C.  J.,  there  saying:  "  As  to  the  necessity 
of  the  goods  coming  to  the  corporal  touch  of  the  bankrupt,  that 
is  merely  a  figurative  expression,  and  has  never  been  literally  ad- 
lierod  to.  For  there  may  be  an  actual  delivery  of  the  goods 
witliout  the  bankrupt's  seeing  them,  —  as  a  delivery  of  the  key  of 
the  vendor's  warehouse  to  the  purchaser."  And  Ashurst,  J. : 
"  The  general  rule  is  that  the  consignor  has  a  right  to  stop  the 
goods,  if  he  can,  before  they  get  into  the  actual  possession  of  the 
bankrupt." 

And  Lord  Wensleydale  (Parke,  J.),  in  Dixon  v.  Yates :2  "If 
the  vendors  had  parted  with  the  actual  possession,  and  the  goods 
had  remained  in  the  hands  of  a  carrier  they  would  have  been  enti- 
tled to  stop  them  in  transitu,  unless  the  sub-purchasers  from  the 
vendee  had  taken  actual  possession.^^  So,  in  Townley  v.  Crump,^ 
where  a  sale  of  goods  was  made,  but  the  possession  remained  in 
the  vendor,  a  delivery  order  being  handed  to  the  vendee,  but  no 
transfer  of  the  goods  having  been  made  on  the  warehouse  books 
of  the  vendor.  Lord  Abinger,  C.  B.,  held  that  no  sufficient  delivery 
was  shown  to  devest  the  lien  of  the  vendors.  And,  treating  the 
delivery  order  as  only  equivalent  to  the  giving  of  an  invoice  or 
bill  of  lading,  said,  that  that  "  does  not  take  away  the  right  to  stop 
in  transitu,  if  there  has  been  no  actual  delivery  of  the  goods."  * 

We  therefore  conclude  that  though  there  is  no  actual  receipt  by 
the  vendee,  under  the  statute,  of  the  whole  of  the  goods,  so  long 
as  the  vendor's  lien  or  his  right  of  stoppage  in  transitu  attaches  to 
the  whole  of  the  goods,  and  that,  in  such  case,  the  vendor  cannot 
maintain  an  action  for  goods  sold  and  delivered,  nor  the  vendee 
maintain  trover  for  them  ;  yet,  where  the  requirements  of  the  stat- 
ute have  been  met,  either  by  the  acceptance  and  actual  receipt  of 
part  of  the  goods,  by  the  memorandum  of  the  contract  in  writing, 
or  by  a  part  payment  of  the  purchase-money,  and  there  is  thus  a 
complete  contract,  the  action  for  goods  sold  and  delivered  may  be 
as  at  common  law  where  there  has  been  a  delivery  of  the  goods  to 
a  carrier,  even  though  the  right  of  stoppage  in  transitu  may 
continue. 

Campbell,  who,  in  his  work  on  Sales,  also  reaches  this  conclu- 
sion, does  so,  on  the  ground  ^  that  the  term  "  actual "  in  the  stat- 
ute is  used  in  contradistinction  to  the  term  "  constructive."  We 
do  not  concur  in  this  view,  which  we  think  results  from  the  want 

1  3  T.  R.  464.  here  the  acceptance  of  the  goods  hy  the 

2  5  B.  &  Ad.  at  p.  341.  vendee,  the  very  "actual  receipt"  which 

3  4  A.  &  E.  58,  60.  is  required  by  the  statute  was  heki  to  be 
*  In  a  note  to  the  fourth  American  edi-  wanting,  the  goods  not  having  been  actii- 

tion  of  Benj.  on  Sales,  §186,  it  is  said  ally  transferred  or  delivered  to  the  vendee, 
that  this  was  a  good  receipt  to  satisfy  the  ^  See  Campbeii  on  Sales,  p.  186. 

statute.    On  the  contrary,  while  there  was 


\ 


PART   VII.]  THE  ACTUAL  RECEIPT.  489 

of  stress  in  the  distinction  between  the  acceptance  and  the  actual 
receipt  of  the  statute.  By  the  acceptance  at  common  law  ;  that  is, 
by  the  assenting,  the  recognizing,  the  taking  to  the  specific  goods 
as  the  subject  of  the  contract,  the  property  in  the  goods  passed  to 
the  vendee.  But,  in  addition  to  this  acceptance,  the  statute  re- 
quires an  actual  receipt  as  well ;  that  is,  an  actual  transmission  of 
the  possession  from  the  vendor  to  the  vendee,  so  that  both  prop- 
erty and  possession  absolutely,  by  the  acceptance  and  the  actual 
receipt,  vest  in  the  vendee  ;  as,  by  an  actual  delivery  to  the  vendee 
of  accepted  goods,  the  very  transitus  of  the  goods  is  terminated, 
and  the  vendor's  possession  and  lien  are,  on  the  goods  actually 
delivered,  actually  extinguished.  But  the  actual  delivery,  where 
this  result  is  accomplished,  equally  amounts  to  an  actual  receipt, 
as  it  did  at  common  law,  whether  such  actual  receipt  be  manual, 
constructive,  or  symbolical.  Campbell  saw  this  in  the  case  of  the 
constructive  receipt  by  a  warehouseman,  and  tries,  we  think  not 
successfully,  to  treat  this  as  an  exceptional  case  of  actual  receipt. 
But,  outside  of  that,  there  are  numerous  cases,  many  of  which  we 
cite  in  the  next  succeeding  lengthy  note,  where  the  goods  remain  in 
the  possession  of  the  vendee,  but  as  he  holds  them  not  as  owner, 
but  as  custodian  or  bailee  for  the  vendee,  with  his  lien  as  unpaid 
vendor  gone,  and  his  right  to  sue  as  for  goods  sold  and  delivered 
attaching,  his  possession  is  the  constructive  possession  of  the  ven- 
dee, and  meets  the  requirements  of  the  actual  receipt  of  the  stat- 
ute. Hence,  we  qonclude,  to  satisfy  the  requirements  of  the 
actual  receipt,  and  its  correlative,  actual  delivery,  as  the  vendor  is 
not  the  agent  of  the  vendee  to  actually  receive  the  goods,  and  can 
only  hold  the  goods  for  the  vendee  when  his  position  as  vendor, 
in  respect  to  the  goods  which  he  has  actually  delivered,  is  gone, 
so  that,  on  them,  he  has  lost  his  lien  as  unpaid  vendor ;  so  the 
vendor's  carrier  is  not  the  vendee's  agent  to  actually  receive  the 
goods  within  the  meaning  of  the  statute  ;  and,  therefore,  as  long 
as  he  holds  the  goods  with  the  vendor's  lien  or  right  of  stoppage 
in  transitu  attaching,  his  receipt  is  not  that  of  tlie  vendee,  and 
the  actual  receipt  of  the  statute,  with  its  corresponding  actual 
delivery  to  the  vendee,  is  wanting. 

The  fundamental  error  which  was  made  by  the  Court  of  Queen's 
Bench  in  Bushel  v.  Wheeler,^  was  in  their  ignoring  the  actual  re- 
ceipt of  the  statute,  as  though  an  acceptance  alone  was  all  that 
was  necessary  to  make  the  contract  be  deemed  good,  altiiough  in 
their  strange  contradictions  the  acceptance  itself  was  to  be  ig- 
nored when  there  was  an  actual  receipt.  Thus,  Lord  Dcnman 
there,  ignoring  the  actual  receipt,  or  implying  that  where  there  is 

1  8  Jur.  532. 


490  COMMENTARIES   ON   SALES.  [BOOK  IV. 

an  "  actual  manual  receiving,"  there  is  necessarily  an  acceptance, 
says  :  "  When  the  contract  is  not  in  writing,  the  question  whether 
there  has  been  an  acceptance  must  be  a  question  of  evidence,  vary- 
ino"  very  much  according  to  the  particular  circumstances  of  each 
case.  The  purchaser  may  depute  another  person  to  exercise  a 
judgment  for  him  as  to  the  quality  of  the  goods,  or  he  may  rely 
upon  the  judgment  and  integrity  of  the  manufacturer  from  whom 
he  orders  the  goods.  In  these  cases,  it  seems  to  me,  there  may 
certainly  be  an  acceptance  within  the  statute,  without  an  actual 
manual  receiving."  Williams,  J.,  is  even  worse.  He  mixes  the 
terms  in  the  most  inextricable  manner,  thus  :  "  The  moment  it  is 
held  that  manual  acceptance  by  the  buyer  is  not  necessary  to  sat- 
isfy the  strong  language  of  the  statute,  it  follows  that  a  construc- 
tive acceptance  is  sufficient.  The  larger  in  bulk  the  goods  are,  and 
therefore,  in  general,  the  greater  the  value  of  the  goods  in  ques- 
tion, the  more  impossible  is  an  actual  receipt  of  them  by  the  buyer 
himself;  and,  therefore,  in  the  nature  of  things,  a  constructive  re- 
ceipt must  be  considered  as  satisfying  the  statute.  If,  then,  there 
may  be  a  constructive  receipt,  the  question  must  be  left  to  the  jury. 
It  would  be  absurd  to  attempt  to  lay  down  any  general  rule  as  to 
what  amounts  to  an  acceptance  ;  it  must  be  submitted  to  the  jury 
in  each  particular  case,  has  there  or  has  there  not  been  an  actual 
acceptance  ? ''^  And,  as  we  have  pointed  out,^  although  the  jury 
had  expressly  found  that  there  had  been  no  acceptance,  a  new 
trial  was  ordered  for  a  further  finding  by  them  on  the  same  ques- 
tion ;  the  point  as  to  the  actual  receipt  being  in  terms  ignored,  al- 
though there  seems  to  have  been  no  evidence  in  the  case  of  any 
delivery  having  been  made  to  the  vendee,  or  of  any  actual  receipt 
by  him. 

But  we  think  we  have  demonstrated  in  our  very  full  examina- 
tion of  these  important  questions,  in  this  and  in  the  next  preced- 
ing Part,  that  the  acceptance  of  the  statute  is  one  thing  ;  viz.,  an 
act  of  the  mind,  in  accepting,  approving,  selecting,  recognizing, 
taking  to  of  the  goods  purchased  as  the  very  subject  of  the  con- 
tract ;  and  that  the  actual  receipt  of  the  goods,  which  is  also  re- 
quired by  the  statute,  and  which  is  the  actual  transmission  of  the 
possession  of  the  goods  or  of  such  of  them  as  have  been  actually 
delivered,  from  the  vendor  to  the  vendee,  either  manually,  con- 
structively, or  symbolically  —  but  so  actually,  and  so  effectually,  as 
that  they  are  absolutely  in  the  possession  of  the  vendee  by  himself 
or  his  bailee,  with  the  vendor's  lien  or  his  right  of  stoppage  in 
transitu,  gone  —  is  quite  another ;  and  tliat  both  the  acceptance 
and  the  actual  receipt  are  necessary  as  to  the  goods  which  have 

1  Supra,  p.  355. 


PART    VII.] 


THE   ACTUAL   RECEIPT. 


491 


been  actually  delivered  and  actually  received,  in  order  to  supply 
the  evidence  of  the  "good"  contract  under  the  statute. 

These  points  being,  we  think,  established,  and  thinking  it  is  not 
"  absurd  to  attempt  to  lay  down  any  general  rule  as  to  what 
amounts  to  an  acceptance ; "  but  that,  in  order  to  relieve  the 
cases  from  the  mass  of  confusion  in  which  the  absence  of  such  an 
attempt  has  involved  them,  it  was  necessary  to  make  that  attempt, 
which  we  have  done,  and  we  trust  successfully ;  it  now  remains 
to  make  such  application  as  we  can  of  these  principles  to  the  de- 
cided cases.  This  could  be  more  satisfactorily  done  if  the  cases 
had  generally  been  decided,  as  they  have  not  been,  upon  any  con- 
sistent, logical  principle. 

We  conclude  then,  that  where  there  is  the  actual  receipt  by  the 
vendee  of  the  goods  sold,  or  of  some  part  of  them,  there  is  also  the 
sufficient  acceptance  of  them  to  satisfy  the  statute,  when 

1.  The  goods  are  specific  goods,  ascertained,  selected,  recog- 
nized ;  and  specifically,  by  such  ascertaining,  selecting,  recog- 
nizing, are  accepted  and  taken  to  as  the  very  subject  of  the 
purchase.^ 

1  The  leading  case  fixing  this  principle 
is  Cusack  v.  Robinson,  1  B.  &  S.  299.  But 
since  that  important  and  thoroughly  well- 
decided  case  has  fixed  the  principle  that 
the  acceptance  is  an  independent  entity, 
which  in  no  wise  depends  upon  the  actual 
receipt  of  the  statute,  which  is  also  re- 
quired to  make  the  contract  be  deemed 
good ;  and  that  the  acceptance  may  pre- 
cede, be  contemporaneous  with,  or  follow 
the  actual  receipt,  the  case  has  fixed  the 
doctrine  as  applicable  to  the  statute,  as 
it  was  at  common  law  before  the  statute 
was  enacted,  —  that  the  selling  of  specific 
goods  for  a  specific  price  (per  Holroyd,  J., 
in  Baldey  v.  Parker,  2  B.  &  C.  37,  44) 
itself  is  an  acceptance  of  the  goods,  pass- 
ing the  property  in  them  to  the  vendee. 
And  when,  upon  such  a  sale,  involving 
such  an  acceptance,  the  vendor  so  parts 
with  the  possession  of  the  goods  that  he 
parts  with  his  lien,  and  the  possession  ab- 
solutely vests  in  the  vendee,  the  statute  is 
satisfied.  For  "the  statute  contemplates 
such  a  parting  with  the  possession  ;  and, 
therefore,  as  long  as  the  seller  preserves 
his  control  over  the  goods  so  as  to  retain 
his  lien  [on  all  the  goods  sold],  he  jire- 
vents  the  vendee  from  .  .  .  receiving  them 
as  his  own  within  the  meaning  of  the  stat- 
ute." Ibid.  On  the  principle  as  to  ac- 
ceptance which  we  deduce  from  Cusack  v. 
Robinson,  1  B.  &  S.  299,  all  of  the  fol- 
lowing cas(!S  rank  themselves  :  Chaplin  v. 
Rogers,  1  East,  192  ;  Hodgson  v.  Le  Bret, 
1  Camp.  233  ;  Elmore  v.  Stone,  1  Taunt. 
458  ;   Astey  v.  Emery,  4  M.  &  S.  262  ; 


Blenkinsop  v.  Clayton,  1  Taunt.  397; 
Tempest  v.  Fitzgerald,  3  B.  &  Aid.  680  ; 
Carter  v.  Touissaint,  5  B.  &  Aid.  855  ; 
Price  V.  Lea,  1  B.  &  C.  156  ;  Baldey  v. 
Parker,  2  B.  &  C.  37;  Procter  v.  Jones, 
2  C.  &  P.  532  ;  Smith  v.  Surman,  9  B.  & 
C.  561;  Maberley  v.  Sheppard,  10  Bing. 
99 ;  Elliott  v.  Pybus,  10  Bing.  512 ; 
Baines  v.  Jevons,  7  C.  &  P.  288  ;  Boulter 
V.  Arnott,  1  Cr.  &  M.  333;  Goodall  w. 
Skelton,  2  H.  Bl.  316 ;  Simmons  v. 
Swift,  5  B.  &  C.  857,  864  ;  Wright  v.  Per- 
cival,  8  L.  J.  N.  s.  Q.  B.  258  ;  Harris  v. 
Matthews,  3  Jur.  1192  ;  Dodsley  v.  Var- 
ley,  12  A.  &  E.  632;  Edau  v.  Dudtield,  1 
Q.  B.  551  ;  Farina  v.  Home,  16  M.  & 
W.  119;  Saunders  v.  Topp,  4  Ex.  390; 
Holmes  v.  Hoskins,  9  Ex.  753  ;  Bigg  v. 
Whisking,  14  C.  B.  195;  Tonikinson  v. 
Staight,  17  C.  B.  697;  Marvin  v.  Wallis,  6 
E.  &  B.  726  ;  Currie  v.  Anderson,  2  E.  & 
E.  592  ;  Simmonds  v.  Humble,  13  C.  B. 
N.  s.  258  ;  Kershaw  v.  Ogden,  3  H.  &  C. 
717;  Heilbutt  v.  Hick  son,  L.  R.  7  C.  P. 
438,  449  ;  Marshall  v.  Green,  1  C.  P.  Div. 
35,  43.  The  principles  as  to  acceptance  at 
common  law  by  the  purchase  of  specific 
goods,  in  thus  selecting,  recognizing,  ap- 
proving, accepting,  the  goods,  which  gov- 
erned the  franiors.of  the  statute  of  frauds, 
and  with  reference  to  which  they  obviously 
used  the  term  "accept"  of  the  statute,  are 
well  laid  down  bv  Bovill,  C.J.,  in  Heilbutt 
V.  Hickson,  L.  R.  7  C.  P.  438,  449,  fully 
quoted  by  us,  svpra,  p.  419.  And  see,  on 
the  same  subject,  Alexander  v.  Gardner, 
1  Bing.  (N.  C.)  671;  Aldridge  t>.  Johnson, 


492 


COMMENTARIES   ON   SALES. 


[book  IV. 


2.  That  they  are  specific  goods,  and  accepted  as  such  as  the 
subject  of  the  contract,  when,  by  description,  the  particular  goods 
arc  identified,  recognized,  assented  to,  and  approved  ;  and,  there- 
fore, they  cannot,  after  their  actual  receipt,  be  rejected,  if  they  are 
the  very  goods  which,  by  their  description,  have  been  made  the 
approved,  accepted,  recognized  subject  of  the  contract.^ 

7  E.  &  B.  885  ;  Langton  v.  Higgins,  4  H. 
&  N.  402  ;  Wait  v.  Baker,  2  Ex.  1 ;  Brown 
V.  Hare,  4  H.  &  N.  822  ;  Tregelles  v.  Sew- 
ell,  7  H.  &  N.  574  ;  Behn  v.  Burness,  3 
B.  &  S.  at  p.  756,  per  Williams,  J.  In 
Dixon  V.  Yates,  5  B.  &  Ad.  313,  340, 
Lord  Wensleydale  (Parke,  J.)  said:  "I 
take  it  to  be  clear  that  by  the  law  of  Eng- 
land tiie  sale  of  a  specific  chattel  passes 
the  property  in  it  to  the  vendee  without 
delivery.  The  general  doctrine  that  the 
property  in  chattels  passes  by  a  contract 
of  sale  to  a  vendee  without  delivery  is 
questioned  in  Bailey  v.  Culverwell,  2 
Mann.  &  Ry.  566,  in  a  note  by  the  re- 
porters ;  but  I  apprehend  the  rule  is  cor- 
rect as  confined  to  a  bargain  for  a  specific 
chattel.  Where  there  is  a  sale  of  goods 
generall}',  no  property  in  them  passes  till 
delivery,  because  until  then  the  very  goods 
sold  are  not  ascertained ;  but  where,  by 
the  contract  itself,  the  vendor  appropri- 
ates to  the  vendee  a  specific  chattel,  and 
the  latter  thereby  agrees  to  take  that  spe- 
cific chattel,  and  to  pay  the  stipulated 
price,  the  parties  are  then  in  the  same 
situation  as  they  would  be  after  a  delivery 
of  goods  in  pursuance  of  a  general  con- 
tract. The  very  appropriation  of  the 
chattel  is  equivalent  to  delivery  by  the 
vendor,  and  the  assent  of  the  vendee  to 
take  the  specific  chattel  is  equivalent  to 
Ms  accepting  possession.  The  effect  of 
contract,  therefore,  is  to  vest  the  property 
in  the  bargainee." 

1  Thus,  in  Kibble  v.  Gough,  38  L.  T. 
N.  s.  204,  the  contract  was  to  buy  all  the 
barley  of  the  year's  growth.  It  was  held 
(see  per  Cotton,  L.  J.  at  p.  206)  that  this 
related  to  a  thing  certain  and  specified, 
and,  on  its  actual  receipt,  it  being  the 
very  barley  that  was  purchased,  it  could 
not  be  rejected.  So,  in  analogy  to  this, 
it  was  held  in  the  Bog  Lead  Mining  Co. 
V.  Montague,  10  C.  B.  N.  s.  481,  where 
the  defendant  agreed  to  accept  a  specific 
number  of  shares  afterwards  allotted  to 
him,  tliat  this  was  a  sufficient  acceptance 
of  the  shares  to  satisfy  the  statute,  which 
required  tiie  specific  attestation  by  the 
purchaser  of  his  acceptance  of  the  shares, 
inasmuch  as  the  ])urchaser  did  get  the 
very  tiling  for  which  he  had  asked,  and 
of  which  he  had  by  anticipation  testified 
his  acceptance.  So  we  think  there  was 
a  clear   acceptance  of  the  whalebone   in 


Coombs  V.  The  Bristol  &  Exeter  Ry.  Co., 
3  H.  &  N.  510,  as  that  was  the  very  sub- 
ject of  the  purchase,  and,  by  its  purchase, 
was  recognized,  approved,  assented  to,  ac- 
cepted, as  the  very  subject  of  the  pur- 
chase. And,  we  think,  that  had  the  re- 
ceipt of  the  carrier  been  there  the  actual 
receipt  of  the  vendee,  both  the  statute 
would  have  been  satisfied  and  the  prop- 
erty and  possession  in  and  of  the  goods 
woud  have  been  in  the  vendee  as  the  spe- 
cific subject  of  the  purchase.  So  we  think, 
whei-e  there  was,  as  in  Hart  v.  Bush,  E.  B.  & 
E.  494,  the  purchase  at  a  specific  price  of  a 
designated  kind  of  brandy,  that  this  was  an 
acceptance  of  the  brandy  as  the  subject  of 
the  purchase ;  and  had  the  vendee  actually 
received  the  subject  of  his  purchase,  as  in 
Kibble  v.  Gough,  38  L.  T.  N.  s.  204,  and  in 
the  Bog  Lead  Mining  Co.  v.  Montague,  10 
C.  B.  N.  s.  481,  that  then,  on  the  actual  re- 
ceipt of  the  brandy,  he  could  not  have  re- 
jected it,  as  it  was  the  very  subject  which  he 
had  recognized,  approved,  and  assented  to 
as  the  article  he  was  buying  at  the  agreed 
price.  But  the  receipt  of  the  carrier  was 
not,  as  was  contended  in  this  case,  the 
recipt  of  the  buyer,  and,  therefore,  the 
statute  was  not  satisfied.  Indeed,  Lord 
Campbell,  in  the  case,  treats  the  matter  as 
one  only  as  to  whether  tiiere  was  a  receipt 
or  not,  thereby  either  tacitly  conceding 
the  acceptance  of  the  goods  by  the  vendee 
or  else  entirely  ignoring  its  necessity.  So, 
we  think,  as  there  was  an  actual  receipt  in 
Hunt  V.  Hocht,  8  Ex.  814,  but  not  of  the 
goods  which  were  purchased,  that  had  the 
bones  which  were  to  have  been  selected 
from  the  pile  been  selected,  delivered,  and 
actually  received,  the  vendee  could  not  have 
rejected  them,  as  they  would  have  been  the 
very  subject  which  he  had  recognized,  as- 
sented to,  approved,  accepteii^  as  the  sub- 
ject of  his  purchase  ;  and,  therefore,  after 
their  actual  receij)t,  he  could  not  have  re- 
jected them  had  they  been  the  actual  goods 
to  which  he  had  assented  and  "accepted" 
as  the  subject  of  the  purchase.  We  there- 
fore think  that  where,  in  Curtis  v.  Pugh, 
10  Q.  B.  Ill,  there  was  a  purchase  of  a 
quantity  of  Cox's  best  glue,  which  was 
actually  received  by  the  vendee,  and  which 
the  jury  found  was  Cox's  best  glue,  that 
the  vendee  could  not  thereafter  reject  it 
on  the  ground  that  it  was  not  Cox's  best 
glue,  when,  by  his  very  purchase,  he  rec- 


PART    VII.] 


THE    ACTUAL   RECEIPT. 


493 


3.  That  they  are  accepted  as  the  subject  of  the  contract  within 
the  meaning  of  the  statute,  when  they  have  been  purchased  by 
sample,  whether  the  sample  has  been  actually  received  as  a  part 
of  the  very  bulk  of  the  goods  or  not ;  and,  after  the  actual  receipt 
of  the  goods  so  purchased,  and  so,  as  per  sample,  recognized,  as- 
sented to,  adopted,  taken  to,  accepted,  as  the  very  subject  of  the 
purchase,  they  cannot  be  rejected  if  they  conform  to  the  sample, 
and,  therefore,  are  the  very  goods  which  have  been  approved,  as- 
sented to,  accepted,  as  the  very  subject  of  the  purchase.  But,  if 
they  do  not  conform  to  the  sample,  and,  therefore,  are  not  the 
goods  which  have  been  accepted  as  the  subject  of  the  purchase, 
they  may  after  their  actual  receipt,  be  rejected.^ 


ognized,  assented  to,  approved,  accepted, 
and  took  to  Cox's  best  glue  as  the  very 
subject  of  the  purchase,  and,  therefore,  on 
its  actual  receipt,  could  not  reject  it,  as 
he  had  got  exactly  the  goods  to  which  he 
had  assented  as  the  very  subject  of  the 
purchase  ;  as  did  the  vendee  in  Cusack  v. 
Robinson,  1  B.  &  S.  299,  and  in  the  Bog 
Lead  Mining  Co.  v.  Montague,  10  C.  B. 
N.  s.  481.  We  think  the  rationale  of  Kib- 
ble V.  Gough,  38  L.  T.  N.  s.  204  ;  Rickard 
V.  Moore,  38  L.  T.  N.  s.  841,  and  Page  v. 
Morgan,  15  Q.  B.  Div.  228,  fully  sustains 
this  view. 

1  We  have  already  pointed  out  (see 
supra,  p.  465  et  scq.)  that  the  late  cases 
of  Kibble  v.  Gough,  38  L.  T.  N.  s.  204, 
Rickard  v.  Moore,  38  L.  T.  N.  s.  841,  and 
Page  V.  Morgan,  15  Q.  B.  Div.  228,  are 
only  consistent  with  each  other,  and  can 
only  be  sustained  on  this  ground,  which, 
we  think,  is  entirely  sound.  The  fallacy 
of  some  of  the  judges  in  these  cases  (Cot- 
ton, L.  J.,  in  Kibble  v.  Gough,  38  L.  T. 
N.  s.  at  p.  206  ;  Brett,  M.  R.,  in  Page  v. 
Morgan,  15  Q.  B.  Div.  at  p.  230),  in  the 
adoption  of  Lord  Campbell's  obiter  dictum 
in  Morton  v.  Tibbett,  15  Q.  B.  428,  that 
there  can  be  an  acceptance  which  is  not 
an  acceptance,  or  an  acceptance  under  the 
statute  which  does  not  preclude  its  oppo- 
site, a  rejection  as  well,  is  transparent. 
What  has  misled  them  into  this  fallacy 
sustains  the  position  which  we  have  above 
formulated.  Wliere  there  is  a  sale  of  spe- 
cific, ascertained  goods,  or  a  sale  of  goods, 
which,  whether  by  description  or  as  a  sale 
by  .sample,  are  specifically  designated  and 
distinguished  as  the  subject  of  the  pur- 
chase, so  as  to  be  the  designated, recognized, 
assented  to,  approved,  subject  of  the  con- 
tract of  sale,  there  is  then  an  acceptance 
of  the  subject  of  the  sale,  hut  of  that  alone. 
Hence,  if  goods  are  actually  received,  as 
in  Hunt;;.  Hecht,  8  Ex.  814,  in  Rickard 
V.  Moore,  38  L.  T.  N.  s.  841,  and  prob- 
ably in  Barnett  v.  Farley,  11  L.  T.  n.  s. 


107,  which  are  not  the  very  goods  con- 
tracted for,  as  they  have  not  been  the 
goods  which  have  been  accepted,  they  may 
be  rejected.  They  may  be  actually  re- 
ceived and  rejected,  because  they  have  not 
been  accepted.  But  the  same  goods  can- 
not both  be  accepted  avd  rejected,  al- 
though they  must,  to  satisfy  the  statute, 
be  both  accepted  and  actually  received. 
Hence,  when  the  acceptance  of  the  statute 
is  ignored,  or  treated  as  being  entirely  in- 
volved in  the  actual  receipt,  when  they 
say  the  goods  can  both  be  accepted  and 
rejected,  they  really  mean  little  or  nothing 
more  than  that  the  goods  can  be  actual!)'' 
received  and  rejected  ;  not  that  they  can 
both  be  accepted  and  its  very  opposite, 
rejected.  Hence,  in  Kibble  v.  Gough,  38 
L.  T.  X.  s.  204,  and  in  Page  v.  iloigan, 
15  Q.  B.  Div.  228,  it  was  held,  that  the 
goods,  having  been  actually  received,  and 
conforming  with  the  sample,  and,  there- 
fore, being  the  very  goods  which  were  pur- 
chased, assented  to,  recognized,  adopted, 
accepted,  as  the  very  subject  of  the  pur- 
chase, could  not  be  rejected.  But,  in 
Rickard  v.  Moore,  38  L.  T.  N.  s.  841,  the 
goods  which  were  actually  received,  not 
conforming  to  the  samjile,  and,  therefore, 
not  being  the  goods  which  had  been  pur- 
chased, assented  to,  recognized,  accepted, 
as  the  very  subject  of  such  puichase,  could 
be  rejecte<l,  notwithstanding  their  actual 
receipt.  They  could  be  rejected  because 
they  were  not  the  goods  which  had  been 
purchased,  and,  therefore,  nevei-  had  been 
recognized  as  the  subject  of  the  contract, 
or  accepted.  See  also  the  following  cases 
of  sales  by  sample,  and  wiicre  the  right  to 
reject  the  goods  or  not  is  governed  by  the 
principles  really  decided  by  the  three  late 
cases  we  have  examined  :  Hinde  v.  Wiiite- 
house,  7  East,  558  ;  Klintz  v.  Surry,  5 
Esp.  267;  Cooper  v.  Elston,  7  T.  1!.  14; 
Talver  v.  West,  Holt,  178;  liowe  v. 
Palmer,  3  B.  &  Aid.  321;  Parker  v. 
Palmer,   4   B.   •&,   Aid.    387;    Johnson   v. 


494  COMMENTARIES   ON   SALES.  [BOOK   IV. 

4.  Where,  at  or  after  the  actual  receipt,  there  has  been  an  ex- 
press or  implied  assent  to  the  goods  received,  as  being  the  subject 
of  the  contract,  or  there  have  been  laches  on  the  part  of  the 
vendee,  or  such  a  dealing  with  these  goods  by  him  as  shows  that 
he  has  taken  to  them  as  owner,  the  requirements  of  the  statutes 
will  be  satisfied.^ 

The  distinction  between  an  acceptance  and  the  actual  receipt  of 
the  statute  is  recognized  in  the  actual  holding,  in  The  United 
States  Reflector  Co.  v.  Rushton.^  This  was  an  action  for  goods 
sold  and  delivered.  Hence  it  was  necessary  that  a  delivery  and 
actual  receipt  should  be  shown.  There  seems  to  have  been  no 
question  raised  as  to  the  sufficiency  of  the  evidence  as  to  the  de- 
livery and  receipt  of  the  goods,  and  the  court  held,  following 
Cross  V.  O'Donnell,'^  stated  supra  p.  431,  n.  3,  that  the  purchase 
having  been  of  specific  goods,  the  statute  was  satisfied.  The 
court  thus  laid  down  the  law :  "  If  a  man  goes  into  a  store  and 
selects  a  particular  article  of  household  furniture  at  a  certain 
price,  which  he  agrees  to  pay  when  it  is  delivered,  and  the  proof 
is  that  that  particular  article  was  delivered,  it  is,  in  the  absence  of 
evidence  of  any  objection  on  his  part,  to  be  assumed  that  there 
was  both  a  delivery  and  acceptance  of  the  article  within  the  mean- 
ing of  the  statute."  *  See  also  Outwater  v.  Dodge,^  where  it  was 
held,  although,  as  in  so  many  of  the  English  cases,  not  clearly  dis- 
tinguishing the  acceptance  and  the  actual  receipt  as  independent 
entities,  that  the  "  selection  of  the  goods  and  designation  of  the 
receiver  may  amount  to  an  acceptance,  with  which  the  actual  de- 
livery, though  posterior  in  point  of  time,  might  be  coupled  by  re- 
lation, so  as  to  put  the  whole  transaction  out  of  the  operation  of 
the  statute."  6 

Dodgson,   2   M.   &  W.   653  ;   Walker  v.  27  Daly,  410. 

Nussey,  16  M.  k.  W.  302  ;  Morton  v.  Tib-  3  44  n.  Y.  661. 

bett,  15  Q.  B.  428 ;  Gardner  v.  Grout,  2  *  The  United  States  Reflector  Co.  v. 

C.  B.  N.  s.   340;    Simonds  i-.  Fisher,  2  Paishton,  7  Daly,  410,  416;  Daly,  C.  J., 

C.  B.  N.  s.   342;    Gilliat  v.  Roberts,   19  delivering  the  judgment. 

L.  J.  N.  s.  Ex.  410  ;  Griraoldsby  v.  Wells,  ^  g  Wend.  397,  402. 

L.  K.  10  C.  P.  391.     But  see  Nicholson  6  jn  Garfield  v.  Paris,  96  U.  S.  557,  it 

V.  Bower,  1  E.  &  E.  172,  and  Smith  v.  was  held  that  the  acceptance  and  receipt 

Hudson,   6  B.  &  S.  431,  fully  examined  of  goods  to  satisfy  the  statute  of  frauds 

by  us,  swpra,  p.  415  citseg-.,  whichwethink  might  be  constructive,  and  that   the  ac- 

are  very  doubtful  cases,  and  scarcely  sus-  ceptance  and  receipt  of  labels  of  bottles  of 

tainable  in  view  of  the  ratio  decidendi  of  spirituous  liquors,  which  the  jury  found 

the  later  cases  of   Kibble  v.    Gough,   38  addedtothepriceof  the  liquors,  and  formed 

L.  T.  N.  s.  204  ;    Rickard  v.    Moore,   38  part  of  the  price,  were  an  acceptance  and 

L.  T.  N.  s.  841,  and  Page  v.  Morgan,  15  receipt  of  the  goods  within  the  statute. 

Q.  B.  Div.  228.  A  verbal  agreement  was  made  between 

1  Edan  v.  Dudfield,  1  Q.  B.  551 ;  Mor-  the  plaintiff  and  defendant  in  Hinchraaii 

ton  V.  Tibbett,   15  Q.  B.   428  ;    Rohde  v.  v.  Lincoln,  124  U.  S.  38  (decided  Jan.  9, 

Thwaites,  6  B.   &  C.  388  ;    Chapman  v.  1888),  for  the  sale  bv  the  plaintift"  to  the 

Morton,  11  M.  &  W.  534  ;   Lillywhite  v.  defendant   of  certain  stocks  and   bonds. 

Devereux,  15   M.   k  W.   285;   Godts   v.  The   plaintiff   delivered    the    stocks    and 

Rose,  17  C.  B.  229,  237.  bonds  to  a  third  party,  who  gave  a  receipt 


PART   VII.] 


THE   ACTUAL   RECEIPT. 


495 


In  this,i  there  would  seem  to  be  some  appreciation  of  the  dis- 
tinction existing  between  the  acceptance  and  the  actual  receipt  of 


for  them  stating  that  they  were  to  be  de- 
livered to  the  defendant  "  wlien  he  fulfils 
his  contract  [with  the  plaintifl']  to  pur- 
chase said  stocks  for  §18,000."  This  re- 
ceiiit,  with  some  verbal  statements  of  the 
defendant,  was  mainly  relied  on  as  satisfy- 
ing the  iSIew  York  Statute  of  Frauds.  In 
an  action  to  recover  the  pi'ice  of  the 
stocks  and  bonds,  the  court  refused  to 
direct  the  jury  that,  as  the  agreement 
was  not  in  writing,  there  had  been  no 
receipt  and  acceptance  of  the  subject  of 
the  sale  or  any  part  thereof  by  the  defend- 
ant to  satisfy  the  statute,  and  the  jury 
having  found  for  the  plaintiff,  the  case 
came  on  exceptions  to  the  United  States 
Supreme  Court.  The  judgment  of  the 
court  below  was  reversed.  The  Supreme 
Court  held,  that  although  it  is  a  question 
for  the  jury  whether,  under  all  the  circum- 
stances, the  acts  which  the  buyer  does  or 
forbears  to  do,  amount  to  a  receipt  and 
acceptance  within  the  terms  of  the  statute 
of  frauds  :  Bushel  v.  Wheeler,  1.5  Q.  B. 
442  ;  Morton  v.  Tibbett,  15  Q.  B.  428  ; 
Borrowscale  v.  Bosworth,  99  Mass.  378, 
381  ;  Wartman  v.  Breed,  117  Mass.  18  ; 
yet  where  the  facts  in  relation  to  a  con- 
tract of  sale  alleged  to  be  within  the  stat- 
ute of  frauds  are  not  in  dispute,  it  belongs 
to  the  court  to  determine  their  legal  effect. 
Shepherd  v.  Pressey,  32  N.  H.  49,  56. 
And  so  it  is  for  the  court  to  withhold  the 
facts  from  the  jury  when  they  are  not  such 
as  can  in  law  warrant  finding  an  accept- 
ance; and  this  includes  cases  where,  though 
the  court  might  admit  that  there  was  a 
scintilla  of  evidence  tending  to  show  an 
acceptance,  tliey  would  still  feel  bound  to 
set  aside  a  verdict  finding  an  acceptance 
on  that  evidence.  Denny  v.  Williams, 
5  Allen,  1,  5  ;  Howard  v.  Borden,  13  Al- 
len, 299  ;  Pinkham  v.  Mattox,  53  N.  H. 
600,  604.  And  in  order  to  take  the  con- 
tract out  of  the  operation  of  the  statute, 
there  must  be  acts  of  such  a  character  as  to 
unequi%'ocally  jilace  the  property  within  the 
power  and  under  the  exclusive  dominion 
of  the  buyer,  as  absolute  owner,  discharged 
of  all  lien  for  the  price  ;  there  must  be  a 
delivery  by  the  vendor  with  an  intention 
of  vesting  the  right  of  possession  in  the 
vendee  ;  and  there  must  be  an  actual  ac- 
ceptance by  tlie  latter  with  the  intent  to 
take  possession  as  owner.  Th(!  acts  of  the 
parties  must  he  of  such  a  character  as  to 
unequivocally  phice  the  property  within 
the  power  and  under  the  exclusive  domin- 
ion of  the  buyer.  By  y)arting  with  the 
possession,  the  seller  parts  with  his  lien. 


The  statute  contemplates  such  a  parting 
with  tlie  possession  ;  and,  therefore,  as  long 
as  the  seller  preserves  his  control  over  the 
goods  so  as  to  retain  his  lien,  he  prevents 
the  vendee. from  accepting  and  receiving 
them  as  his  own  within  the  statute. 
Marsh  v.  Rouse,  44  N.  Y.  643,  647  ; 
Shindler  v.  Houston,  1  N.  Y.  261  ;  Phil- 
lips V.  Bistolli,  2  B.  &  C.  511  ;  Baily  v. 
Ogden,  3  Johns.  421  ;  Remick  v.  Sand- 
ford,  120  Mass.  309,  316  ;  Baldey  v.  Par- 
ker, 2  B.  &  C.  37.  But  the  receipt  and 
acceptance  by  the  vendee  under  a  verbal 
agreement  otherwise  void  by  the  statute 
of  frauds,  may  be  complete,  although  the 
terms  of  the  contract  are  in  dispute.  Re- 
ceipt and  acceptance  by  some  unequivocal 
act,  sufficiently  proven  to  have  taken  place 
under  some  contract  of  sale,  is  sufficient  to 
take  the  case  out  of  the  prohibition  of  the 
statute,  leaving  the  jury  to  ascertain  and 
find  from  the  testimony  what  terms  of  sale 
were  actually  agreed  on.  Marsh  v.  H3'de, 
3  Gray,  331  ;  Townsendv.  Hargraves,  118 
Mass.  325.  Still  the  acceptance  by  the 
defendant  must  be  in  the  quality  of  ven- 
dee. The  statute  does  not  mean  that  the 
thing  which  is  to  dispense  with  the  writ- 
ing is  to  take  the  place  of  all  the  terms 
of  the  contract,  but  that  the  acceptance  is 
to  establish  the  broad  fact  of  the  relation 
of  vendor  and  vendee.  The  act,  or  acts 
relied  on  as  constituting  a  receipt  and  ac- 
ceptance, to  satisfy  the  statute,  must  be 
such  as  definitely  to  establish  that  the  re- 
lation of  vendor  ami  vendee  exists.  Rem- 
ick v.  Sandford,  120  Mass.  309. 

But  as  in  Hinchman  v.  Lincoln,  124 
U.  S.  38,  there  was  no  receipt  or  accept- 
ance by  the  defendant,  and  the  receipt  by 
the  third  party  was  not  in  the  capacity  of 
agent  for  the  defendant,  tliere  was  not 
even  a  receipt,  much  less  an  acceptance,  by 
the  defendant,  to  take  the  case  out  of  the 
statute.  While  it  is  said  in  so  many  cases, 
as  it  was  said  by  Holroyd,  J.,  in  Baldey  v. 
Parker,  2  B.  &  C.  37,  that,  to  satisfy  the 
statute,  there  must  be  such  an  absolute 
parting  witli  the  possession  of  the  specific 
goods  sold  to  the  puichaser,  as  to  termin- 
ate the  vendor's  lien  for  the  purchase- 
money  ;  it  must  be  borne  in  mind  that 
this  is  only  true,  as  we  have  shown  in  the 
previous  Part,  in  the  case  where  there  has 
been  a  parting  with  the  possession  by  the 
seller,  of  the  loholc  of  the  goods  sold.  To 
satisfy  the  statute,  a  receipt  and  accept- 
ance of  "some  part"  of  the  goods  sold,  is 
sufficient.  But  by  delivering  a  ])art  of  the 
goods  sold,  the  vendor  docs  not  thereby 


^  Following  Roberta  on  Frauds,  pp.  181,  182. 


496 


COMMENTARIES   ON   SALES. 


[book  IV. 


the  statute.  But,  in  the  case  itself,  as  well  as  in  Roberts  on 
Frauds,  the  context  shows  that  the  confusion  in  the  English  cases 
between  the  acceptance  and  the  actual  receipt  of  the  statute  has 


relinfjuish  his  lien  on  the  goods  which  he 
still  retains  in  his  possession.  On  those 
he  retains  his  lien  for  the  purchase-money 
not  only  for  those  retained,  but  for  that 
portion  which  he  has  delivered  as  well. 
As  possession  is  of  the  very  essence  of  a 
lien,  when  the  seller  parts  with  the  abso- 
lute, unconditional  possession  of  the  goods, 
his  lien  is  necessarily  gone  ;  and  yet,  while 
this,  as  far  as  it  goes,  is  a  test  of  the  ap- 
plication of  the  statute  as  far  as  regards 
the  case  of  the  parting  with  the  possession 
of  the  whole  of  the  goods;  when  only  a 
part  of  the  goods  has  been  delivered  and 
accepted,  so  as  to  meet  the  requirements 
of  the  statute,  the  vendor  may  still,  by 
virtue  of  the  part  of  the  goods  which  he 
has  retained,  hold  his  lien  for  the  pur- 
chase-money intact. 

The  statute  of  frauds  of  Missouri  enacts 
(Rev.  Stats,  of  Mo.,  of  1865,  p.  440,  ch. 
107)  that  *'  every  sale  by  a  vendor  of  goods 
and  chattels  in  his  possession,  or  under 
his  control,  unless  accompanied  by  deliv- 
ery within  a  reasonable  time  (regard  being 
had  to  the  situation),  and  be  followed  by 
an  actual  and  continued  change  of  posses- 
sion, shall  be  held  to  be  fraudulent  and 
void  as  against  the  vendor  or  subsequent 
purchasers  in  good  faith."  Allen  v.  Mas- 
sey,  17  Wall.  351,  w-as  decided  under  this 
statute.  The  facts  were  that  Massey  and 
one  Downing,  in  Missouri,  moved  into  a 
house,  each  furnishing  a  part  of  it.  That 
which  Downing  furnished  was  principal- 
ly the  parlor,  library,  dining-room,  halls, 
and  stairway.  Both  families  used  and  oc- 
cupied the  parlor,  library,  and  dining- 
room  alike,  and  made  equal  use  of  the 
furniture  of  these  rooms.  Massey  paid 
the  expenses  of  the  house,  and  attended  to 
it;  he  and  Downing  subsequently  settling 
and  dividing  the  expenses.  About  five 
years  after  they  moved  into  the  house, 
Downing,  being  indebted  to  Mrs.  Massey, 
sold  and  conveyed  his  furniture  to  her. 
At  the  time  of  the  sale,  Downing  and  Mrs. 
Massey  went  around  and  took  an  inventory 
of  it,  and  agreed  on  the  price.  The  trans- 
action was  completed  by  Downing  turning 
over  the  furniture  to  her,  and  by  execut- 
ing and  delivering  to  her  a  bill  of  sale  duly 
acknowledged  before  a  notary  public.  Af- 
ter the  sale,  both  families  continued  to 
occupy  the  house  and  use  the  furniture  as 
before  ;  the  furniture,  however,  being  sub- 
ject to  the  absolute  and  sole  control  of 
Mrs.  Massey.  Subsequently  to  this  sale 
Downing  was  decreed  a  bankrupt,  the 
plaintiff  being  appointed  his  assignee.  On 
a  bill  filed  by  the  assignee  to  annul  the 


sale,  and  to  recover  the  furniture  under 
the  14th  section  of  the  Bankrupt  Act  of 
1867  (14  Stat,  at  Large,  522),  as  having 
been  conve\'ed  by  the  bankrupt  in  fraud 
of  his  creditors,  the  Circuit  Court  affirmed 
the  decision  of  the  District  Conrt,  decree- 
ing accordingly.  On  appeal  to  the  Su- 
preme Court  of  the  United  States,  the 
decree  w^as  affirmed.  Allen  v.  Massey,  17 
Wall.  351.  The  court  said  :  "  There  was 
no  outward  sign  manifested,  nor  indicia 
exhibited,  nor  notice  given,  which  could 
apprise  the  community  of  any  change  of 
ownership.  The  object  of  the  stature  is 
to  prevent  parties  trom  being  misled  by 
apparent  ownership  of  property  where  real 
ownership  does  nut  exist,  but  where  a 
secret  transfer  has  been  made  to  another. 
This  object  would  be  defeated  if  a  sale  like 
the  present  one  could  be  upheld."  The 
court  referred  to  Claflin  v.  Rosenberg,  42 
Mo.  439,  where  the  question  involved 
was  similarly  decided,  and  as  the  statute 
was  a  local  one,  applying  only  to  sales  in 
Missouri,  they  followed  the  construction 
given  to  the  statute  by  the  highest  court 
of  the  State. 

In  Claflin  v.  Rosenberg,  Ibid.,  where 
the  vendor  had  become  the  clerk  of  the 
purchaser,  the  Supreme  Court  of  Missouri 
held  that  the  possession  which  the  pur- 
chaser was  required  to  take  of  the  property 
sold,  in  order  to  render  the  sale  valid  un- 
der the  statute,  must  be  open,  notorious, 
and  unequivocal,  such  as  would  inform  the 
public,  or  those  who  were  accustomed  to 
deal  with  the  party,  that  the  property  had 
changed  hands,  and  that  the  title  had 
passed  from  the  vendor  to  the  purchaser  ; 
observing  at  the  same  time  that  possession 
of  this  kind  excluded  the  idea  of  a  joint 
or  concurrent  possession  with  the  vendor. 

Li  the  Province  of  Quebec,  where,  by 
their  code,  it  is  provided  that,  in  commer- 
cial matters,  where  the  value  exceeds  $50, 
upon  any  contract  for  the  sale  of  goods, 
unless  the  buyer  has  accepted  or  received 
part  of  the  goods  or  given  something  in 
earnest  to  bind  the  bargain,  no  action  can 
be  brought  against  any  party  or  his  repre- 
sentatives unless  there  is  a  writing  signed 
by  the  party  to  be  charged  ;  it  wa,s  held  by 
the  Superior  Court  of  that  jtrovince,  af- 
firmed by  their  Court  of  Queen's  Bench, 
on  appeal,  that  parol  evidence  of  this  ac- 
ceptance or  receipt  could  not  be  given.  On 
appeal  to  the  Supreme  Court  of  Canada, 
this  absurd  decision  was,  of  course,  re- 
versed, and  unanimously  so.  iluun  v, 
Berger,  10  S.  C.  of  Can.  R.  512. 


PART   VII.]  THE    ACTUAL   RECEIPT,  497 

prevented  the  clear  recognition  of  the  difference  between  the  ac- 
ceptance and  the  actual  receipt  at  which  the  statute  itself  so 
clearly  points.  Thus,  although  in  Outwater  v.  Dodge,^  the  se- 
lecting and  designating  the  particular  goods  would  seem  to  be 
treated  as  though  this  did,  as  it  does,  amount  to  an  acceptance  of 
the  subject  of  the  purchase  to  satisfy  the  statute,  the  court  go  on 
to  say :  "  The  acceptance  need  not  be  by  the  vendee  in  person.  It 
may  be  by  his  agent,  acting  under  either  a  general  or  special  au- 
thority. The  defendants  in  this  case  certainly  never  actually 
themselves  accepted  the  fish  in  question."  Here,  although  having 
conceded  that  "  the  selection  of  the  goods,"  etc.,  may  amount  to 
an  acceptance,  they  use  the  term  "  the  defendants  never  actually 
themselves  accepted  "  the  goods,  where  they  merely  meant  to  say 
that  the  defendants  never  actually  received  them. 

In  the  later  New  York  case  of  Heermance  v.  Taylor,^  the  court 
quote  the  language  used  in  Stone  n).  Browning,^  so  common  in  the 
English  cases,  that  there  must  be  an  "  actual  acceptance  "  of  the 
goods  by  the  purchaser  to  take  the  case  out  of  the  statute.  Yet 
in  Heermance  v.  Taylor,  within  the  language  used  in  Outwater  v. 
Dodge,*  that  "  the  selection  of  the  goods,"  etc.,  "  may  amount 
to  an  acceptance,"  there  was  very  much  in  effect  the  same  accept- 
ance and  actual  receipt  of  the  subject  of  the  purchase  to  take  the 
case  out  of  the  statute  as  there  was  in  Cusack  v.  Robinson.^ 

In  Heermance  v.  Taylor  the  action  w^as  brought  to  recover  the 
agreed  price  of  a  quantity  of  butter,  alleged  to  have  been  sold  by 
the  plaintiff  to  the  defendant,  for  upwards  of  $50.  The  facts 
were  that  the  plaintiff  and  defendant  went  into  the  cellar  in  New 
York  where  the  butter  was,  and  bored  into  and  examined  several 
firkins  of  the  butter,  after  which  the  defendant  purchased  twenty 
firkins  out  of  the  lot  of  forty  from  which  the  firkins  examined  had 
been  taken,  and  directed  them  to  be  sent  to  him  at  Albany.  This 
was  done ;  the  butter  being  "  received  and  placed  in  the  defend- 
ant's cellar,"  in  a  pile  by  itself.  The  defendant  was  absent  from 
Albany,  and  returned  home  two  or  three  days  after  the  arrival  of 
the  butter  at  his  store.  On  the  morning  following  his  return  he 
again  examined  the  butter,  and  then  shipped  it  back  to  the  plain- 
tiff, notifying  him  that  he  should  not  accept  it,  because,  he  alleged, 
it  was  not  the  butter  he  liad  purchased.  As  a  matter  of  fact 
it  was  the  butter  he  had  purchased.  The  complaint  having 
been  dismissed  at  the  circuit,  the  court  at  general  term  refused  a 
new  trial.  They  held  that  there  was  a  delivery  of  the  butter, 
and,  therefore,  necessarily,  an  actual  receipt  of  it,  but  that  that 

J  6  Wend.  397,  402.  <  6  Wend.  397,  402. 

2  14  Hun,  149.  *  1  B.  &  S.  299. 

8  51  N.  Y.  211. 
VOL.  II.  82 


498  COMMENTARIES   ON   SALES.  [BOOK   IV. 

did  "  not  amount  to  the  acceptance  required  by  law."  Citing 
Stone  V.  Browning  ^  and  Caulkins  v.  Hellman,^  to  the  effect  that 
"  Evidence  that  the  goods  were  as  represented,  and  corresponded 
with  the  samples,  was  not  material  upon  the  question  of  accept- 
ance," they  said :  "  Under  this  authority  we  think  the  ruling  of 
the  court  below  was  correct.  The  plaintiff  had  fully  performed 
on  his  part.  He  had  delivered  the  goods  as  directed.  The  goods 
were  those  which  had  been  actually  purchased."  Admitting  that 
the  goods  were  those  which  had  been  actually  purchased,  making, 
as  we  think  Cusack  v.  Robinson  ^  correctly  holds,  the  acceptance 
of  the  statute,  the  actual  receipt  was  very  much  clearer  than  it 
was  in  this  latter  case ;  yet  the  Supreme  Court  of  New  York  af- 
firmed the  decision  of  the  court  below,  misled,  we  think,  by  the 
language  quoted,  that  "  A  delivery  of  property,  to  satisfy  the  re- 
quirement of  the  Statute  of  Frauds,  must  be  a  delivery  by  the 
vendor  with  the  intent  of  vesting  the  right  of  possession  in  the 
vendee,  and  there  must  be  an  actual  [the  italics  are  theirs]  accept- 
ance by  the  latter  with  the  intention  of  taking  possession  as  own- 
er." There  was,  as  is  in  effect  admitted,  in  the  case  itself,  the 
delivery  by  the  vendor,  in  Heermance  v.  Taylor,*  and  the  actual 
receipt  by  the  vendee,  and  as  the  goods  which  he  had  actually 
received  were  those  which  he  had  "  actually  purchased,"  we  think 
there  were  both  the  acceptance  and  the  actual  receipt  of  the  butter 
in  question  to  satisfy  the  statute. 

The  later  case  in  the  New  York  Court  of  Common  Pleas  of  Grey 
V.  Cary,5  ^^  j)  1880)  we  think,  is  a  well-decided  case  on  both  the 
subjects  of  the  acceptance  and  the  actual  receipt  of  the  statute. 
In  this  case  the  defendants  made  an  oral  contract  with  the  plain- 
tiff for  the  purchase  of  a  scale  of  the  Fairbank's  patent,  for  sixty 
dollars.  The  scale  was  seen  and  selected  by  the  defendants  before 
the  purchase  ;  so,  expressly  on  this  ground,  the  court  held  that 
there  was  "no  doubt  of  the  acceptance."  But  the  court  held,  again 
clearly  correctly,  that  as  the  scale,  which  while  in  the  possession 
of  the  plaintiff's  carter  was  broken,  and  its  receipt  (usually  called 
its  acceptance)  being  refused  by  the  defendants,  the  scale  never 
having  passed  into  their  possession  had  not  been  actually  received 
by  them,  and  the  statute  was  not  satisfied.  In  this  case  the 
marked  and  important  distinction  between  the  acceptance  and  the 
actual  receipt  of  the  statute  is  well  taken. 

In  Knight  v.  Mann^^  the  court  recognize  as  an  acceptance  the 
purchase  of  a  specific,  ascertained  chattel  inspected  and  examined 
by  the  purchaser  at  the  time  of  the  agreement,  citing  Cusack  v. 

1  51  N.  Y.  211.  *  14  Hun,  149. 

2  47  N.  Y.  449.  5  9  Daly,  363. 

3  1  B.  &  S.  299.  6  118  Mass.  143,  145. 


PART   VII.]  THE   ACTUAL   RECEIPT.  499 

Robinson '  and  Bog  Lead  Mining  Co.  v.  Montague.'^  In  Towns- 
end  V.  Hargraves,^  where  there  was  a  sale  of  wool  by  sample  for 
a  given  price  per  pound,  and  the  bales  were  specifically  designated 
by  the  terms  of  the  contract,  there  is  the  usual  misuse  of  the  term 
"  acceptance,"  ^  as  though  it  were  synonymous  with  receipt,  but 
the  acceptance,  under  the  above  authorities,  is  clear,  as  the  assent- 
ing to  the  specific  wool  as  the  subject  of  the  purchase. 

In  Knight  v.  Mann,^  while  holding  that  there  was  no  evidence 
of  acceptance  in  the  case,  it  was  conceded  throughout  the  con- 
troversy that  there  was  sufficient  evidence  of  delivery.  From 
the  facts  as  stated  it  would  seem  that  there  was  no  evidence 
whatever  of  delivery  (actual  rceipt),  but  it  is  by  no  means  as 
clear  that  the  facts  did  not  show  an  acceptance  of  the  subject  of 
the  sale. 

And  in  Safford  v.  McDonough^  there  is  again  the  improper 
confounding  of  the  acceptance  of  the  statute  with  the  actual 
receipt.  The  court  say  :  "  The  question  is  whether  the  defendant 
had  accepted  and  received  the  goods  so  as  to  tal^e  the  case  out  of 
the  Statute  of  Frauds,  and  thus  complete  and  make  valid  the  oral 
contract  relied  on.  Unless  there  was  such  acceptance  and  receipt 
there  was  no  valid  contract  by  virtue  of  which  the  title  to  the  goods 
would  pass  to  the  defendant.  To  constitute  this  there  must  be  a 
delivery  by  the  seller,  and  some  unequivocal  acts  of  ownership  or 
control  of  the  goods  on  the  part  of  the  purchaser."  And  yet  in 
this  case  the  purchaser  examined  the  specific  goods,  had  them 
weighed,  marked  with  the  initials  of  his  name,  and  piled  up  by 
themselves  to  be  taken  away  by  him  upon  giving  a  satisfactory  note 
for  the  price  or  the  payment  of  the  price  in  money,  but  not  other- 
wise. Both  the  Superior  Court  and  the  Supreme  Court  of  Massa- 
chusetts held  that  "  there  was  no  actual  acceptance  and  receipt 
of  the  goods  by  the  defendant."  As  this  case  was  decided  subse- 
quently to  Cusack  V.  Robinson,'^  which  is  cited  by  the  Supreme 
Court  of  Massachusetts  in  the  case,  their  confounding  the  accept- 
ance with  the  actual  receipt  is  entirely  inexcusable.  While  the 
evidence  of  the  acceptance  was  conclusive,  there  was  no  evidence 
whatever  in  the  case  of  the  actual  receipt  of  the  statute. 

In  Rodgers  v.  Jones  ^  there  is  a  similar  confounding  of  the 
acceptance  with  the  actual  receipt  of  the  statute,  where  again 
there  was  the  clearest  evidence  of  the  acceptance,  but  no  evidence 
whatever  of  the  actual  receipt  of  the  statute.^ 

M  ]?.  &  S.  299.  6  120  Mass.  290. 

2  10  C.  P,.  N.  s.  481.  7  1  B.  &  S.  299. 

8  118  Mass.  32.5.  *  129  Mass.  420. 

*  See  pp.  332,  333.  »  Young  v.  Blaisdell,  60  Me.  272,  is  a 

6  120  Mass.  219,  220  ;  s.  c.  118  Mass.     similar  case. 
143. 


500  COMMENTAEIES   ON   SALES.  [BOOK   IV. 

Shindler  v.  Houston  ^  is  a  very  similar  case.  In  this  case  there 
was  the  purchase  of  specific,  ascertained  lumber,  showing,  within 
the  meaning  of  the  statute,  a  clear  "  acceptance  "  of  the  lumber. 
In  the  judgments  of  Gardiner  and  Wright,  JJ.,  the  term  "  accept- 
ance "  is  repeatedly  used  as  though  it  were  the  equivalent  simply 
of  receipt.  Thus  the  latter,  after  citing  several  cases  to  show 
what  constitutes  delivery,  says :  "  In  these  cases,  and  in  a  large 
number  of  others  that  might  be  cited,  the  circumstances  were  un- 
equivocal to  show,  not  merely  a  delivery  to  and  acceptance  of  the 
property  in  the  goods,  but,  what  is  always  essential,  a  complete 
acceptance  [meaning  a  receipt]  of  the  possession,  by  the  buyer." 

50  acceptance,  instead  of  receipt,  is  used  as  the  correlative  of 
"  transfer  "  or  delivery.  And  again  :  "  I  think  I  may  affirm  with 
safety  that  the  doctrine  is  now  clearly  settled  that  there  must  not 
only  be  a  delivery  by  the  seller,  but  an  ultimate  acceptance  of  the 
possession  of  the  goods  hy  the  buyer,  and  that  this  delivery  and 
acceptance  [meaning  receipt]  can  only  be  evinced  by  unequivocal 
acts  independent  of  the  proof  of  the  contract."  ^  Bronson,  J.,  on 
the  contrary,  uses  the  terms  "  accept  "  and  "  receive  "  with  critical 
accuracy,  and  properly  confines  the  discussion  in  the  case  to  the 
question,  specifically,  whether  there  had  been  an  actual  receipt  in 
the  case  or  not,  and  properly  concludes  that,  as  "  there  was  no 
delivery,  either  actual  or  symbolical,"  of  the  lumber,  there  was  no 
actual  receipt  of  it." 

In  Somers  v.  McLaughlin,*  as  in  Cusack  v.  Robinson,^  the  dis- 
tinction between  the  acceptance  and  the  actual  receipt  is  recog- 
nized ;  and  it  was  there  held  that  when  there  is  a  verbal  contract 
of  sale  of  specific  property  and  the  terms  fixed,  with  an  order  of 
delivery  at  a  designated  place,  and  the  goods  are  delivered  at  such 
place,  the  statute  is  satisfied ;  the  acceptance  having  been  complete 
when  the  bargain  was  made. 

In  Harvey  v.  St.  Louis  Butchers',  &c.  Assoc.^  the  judge  of  the 
Circuit  Court,  in  his  instructions  to  the  jury,  thus  correctly  stated 

M  N.  Y.  261.  ton  Ice  Co.  v.  Webster,  62  Me.  341  ;  Har- 

2  Ibid.  pp.  271,  273.  vey  v.  St.  Louis  Butchers'  Assoc.,  31>  Mo. 

3  Ibid.  266  et  seq.  Hewes  v.  Jordan,  211  ;  Jones  v.  Meclianics'  Bank,  29  Md. 
39  Md.  472,  is  a  valuable  case  on  the  sub-  287;  Gibbs  v.  Benjamin,  45  Vt.  124;  Smith 
ject,  as  is  also  Safford  v.  Downing,  2  Low-  v.  Brennan,  62  Mich.  349;  Bacon  v.  Eccles, 
ell,  563.  These  cases  come  very  near  to  43  Wis.  227;  Ullman  v.  Barnard,  7  Gray, 
the  proper  distinction  which  exists  be-  554  ;  Simmons'  Hardware  Cr,.  v.  Mullen, 
tween  the  acceptance  and  tlie  actual  re-  33  Minn.  195;  Fontaine  v.  Bush,  40  Minn, 
ceipt  of  the  statute.  And  see  Gray  v.  141.  In  nearly  all  of  these  cases  there  is 
Davis,  10  N.  Y.  285  ;  Caulkins  v.  Hell-  the  same  failure  as  there  is  in  .so  many  of 
man,  47  N.  Y.  449;  Stone  v.  Browning,  the  English  cases  to  propeily  discriminate 

51  N.  Y.  211  ;  Brewster  v.  Taylor,  63  between  the  acceptance  and  the  actual  re- 
N.  Y.   587;   Cooke  v.  Millard,   65  N.  Y.  ceipt  of  the  statute. 

352  ;  Stone  v.   Browning,  68  N.  Y.  598  ;  *  57  Wis.  358,  363. 

Edwards  v.  Grand  Trunk  Ry.,  54  Me.  105;  ^  1  B.  &  S.  299. 

Brand  v.  Focht,  3  Keyes,  409  ;  Washing-  «  39  Mq,  2II. 


PART   VII.]  THE   ACTUAL   RECEIPT,  601 

tlie  law  :  "  The  jury  are  instructed  that  an  acceptance,  within  the 
meaning  of  our  statute,  may  be  prior  to  the  receipt  of  the  cattle ; 
and  if  the  jury  find  in  this  case  that  there  was  a  verbal  sale  of  a 
specific  lot  of  cattle,  as  stated  in  the  petition,  and  there  was  an 
acceptance  of  said  cattle  at  the  time  of  the  sale,  and  there  was  a 
subsequent  delivery  of  said  identical  cattle  at  a  place  and  time 
designated  by  the  defendant,  whereby  the  plaintiff  parted  with 
the  possession  with  the  intent  of  putting  an  end  to  all  his  title, 
interest,  and  possession  in  said  cattle,  such  contract  must  be 
regarded  as  partially  or  fully  executed  and  valid  under  our 
statute,  and  if  the  jury  so  find,  they  will  find  for  the  plain- 
tiff." Again  :  "  If  the  jury  find  from  the  evidence  that  the 
plaintiff  had  a  specific  lot  of  cattle  which  the  defendants  by  their 
agent  examined  and  agreed  with  the  plaintiff  to  purchase  and 
take  at  the  price  of  $72.50  per  head,  then  this  constituted  an  ac- 
ceptance of  said  lot  of  cattle  prior  to  their  delivery."  The  jury 
having  found  for  the  plaintiff,  the  Supreme  Court,  on  appeal,  in 
effect  sustain  the  correctness  of  the  law  as  thus  laid  down  in  the 
instructions,  and,  correctly  distinguishing  the  actual  receipt  from 
the  acceptance,  while  holding  that  the  facts  did  not  show  an 
actual  receipt  of  the  cattle  by  the  defendants,  as  there  was  no 
transmission  of  possession  from  the  plaintiff  to  the  defendants, 
they  say,  "  The  statute  provides  that  no  sale  of  goods  shall  be 
valid  unless  the  buyer  shall  accept  part  of  the  goods  so  sold  and 
actually  receive  the  same.  The  goods  must  not  only  he  aecepted^ 
hut  actually  received.  An  acceptance  ascertains  the  identity  and 
quality  of  the  goods  sold,  and  the  receiving  of  them  changes  the 
possession.  The  question  here  is  not  so  much  of  an  acceptance 
as  of  a  delivery  and  receipt  of  the  cattle.  The  number  and  quality 
were  sufficiently  ascertained  [the  acceptance],  but  there  was  no 
delivery  of  possession." 

The  correctness  of  the  law  as  thus  laid  down  was  recognized  in 
Lyle  V.  Shinnebarger,!  where  again  both  the  acceptance  and  the 
actual  receipt  are  insisted  on,  as  it  is  declared  that  these  words  are 
not  to  be  taken  as  so  synonymous  in  character  that  they  may  be 
used  interchangeably ;  as  they  have  been  in  literally  hundreds  of 
cases  in  England  and  this  country. 

So,  in  Victor  v.  Stroock,^  it  was  held  in  the  New  York  City 
Court,  that  the  vendee,  having  accepted  goods  which  he  had  pur- 
chased, could  not  after  their  subsequent  receipt  reject  them, — 
that  is,  as  we  have  shown,  that  he  could  not  do  both  of  the  ex- 
pressly antagonistic  things,  accept  and  reject  the  goods.  lie 
might,  under  the  statute,  accept  and  refuse  to  receive  ;  but  he 

1  17  Mo.  Ap.  66.  2  3  X.  Y.  Supp.  801. 


502  COMMENTARIES   ON   SALES.  [BOOK   IV. 

could  not,  within  the  clear  meaning  of  the  language  in  the  stat- 
ute, both  accept  and  reject.  Victor  v.  Strook  ^  was  affirmed  on 
appeal  by  the  Court  of  Common  Pleas.^ 

As  the  result  of  the  whole  investigation,  we  conclude,  with  even 
greater  certainty  than  when  at  an  earlier  stage  of  this  discussion 
of  the  subject  we  expressed  the  same  views,  (1)  that  the  accept- 
ance and  the  actual  receipt  of  the  statute  are  separate  entities  ; 
(2)  that  as  acceptance  is  not  synonymous  with  receipt,  therefore 
"  actually  "  is  not  used  in  combination  with  "  receive,"  to  show 
that  the  receipt,  as  "  actually  receive,"  is  different  from  receive  in 
the  sense  that  the  receipt  may  not  be  symbolical  or  constructive, 
Out  must  be  manual ;  and  therefore  that  "  accept  and  actually  re- 
ceive "  do  not  mean  receive  and  actually  receive ;  but  (3)  that,  as 
acceptance  is  one  thing  and  the  actual  receipt  quite  another,  there 
must  be  not  only  the  acceptance  but  the  actual  receipt  as  well, 
and  that,  in  the  sense  of  the  statute,  'though  there  may  have  been 
an  acceptance,  there  is  no  actual  receipt  unless  and  until  there 
have  been  an  actual  transmission  of  the  possession  of  the  goods 
so  actually  received  from  the  vendor  to  the  vendee,  with  the  ven- 
dor's lien  and  the  right  of  stojypage  in  transitu^  on  and  in  connec- 
tion with  the  goods  so  transferred  and  actually  received,  utterly 
extinguished.  This,  we  think,  is  the  solution  of  the  whole  ques- 
tion of  the  actual  receipt,  and  all  well-decided  cases  on  the  subject 
must  rank  themselves  within  these  principles. 

Hence,  as  a  corollary,  where  there  have  been  an  acceptance  and 
an  actual  receipt  of  the  whole  of  the  goods,  an  action  for  the  price 
as  for  goods  sold  and  delivered  will  lie  against  the  vendee,  and, 
reciprocally,  he  can  maintain  trover  for  the  goods  against  any  one 
wrongfully  withholding  them.^ 

1  3  N.  Y.  Supp.  801.  Bissell  v.  Balcora,  39  N.  Y.  275  ;  Means 

2  Vietor  v.  Slroock,  5  N.  Y.  Supp.  t-.  Williamson,  37  Me.  556  ;  Hondlette  v. 
659.  See  also  Cross  v.  O'Donnell,  44  Tallnian,  14  Me.  400;  Chapman  v.  Searle, 
N.  Y.  661  ;  Allard  v.  Greasert,  61  N.  Y.  3  Pick.  38  ;  Riddle  v.  Varnum,  20  Pick. 
1,  5,  where  there  is  also  a  cloar  recognition  280;  Green  v.  Merriam,  28  Vt.  801;  Cham- 
of  the  distinction  which  exists  between  berlain  v.  Farr,  23  Vt.  270;  Jackson  v. 
the  acceptance  and  the  actual  receipt  of  Watts,  1  McCord  (S.  C),  288:  Dole  v. 
the  statute.  And  see  supra.  Book  IV.,  Stimpson,  21  Pick.  384  ;  Marsh  v.  Hyde, 
Parts  V.  and  VI.,  where  further  cases  are  3  Gray,  331;  Davis  v.  Moore,  13  Me.  424; 
considered  as  to  acceptance  and  actual  Damon  v.  Osborn,  1  Pick.  476;  Thompson 
receipt.  y.  Alger,  12  Met.  435  ;  Davis  v.  Eastman, 

3  For  further  American  cases  on  the  ac-  1  Allen,  422  ;  Denny  r.  Williams.  5  Allen, 
tual  receipt  of  the  statute,  mainly  in  effect  1;  Snow  v.  Warner,  10  Met.  136;  Howard 
the  same  as  tlie  English  cases  we  have  v.  Borden,  13  Allen,  299;  Quintnrd  v.  Ba- 
cited,  see  Janvrin  v.  Maxwell,  23  Wis.  51;  con,  99  Mass.  185  ;  Knight  d.  M:inn,  118 
Menzies  u.  Dodd,  19  Wis.  343;  Hardell  f.  Mass.  143;  Townsend  i'.  Hargraves,  lb. 
McClure,  1  Chand.  271  ;  Ely  v.  Ormsby,  325  ;  Johnson  v.  Cuttle,  105  Mass.  447; 
12  Barb.  570;  Artcher  v.  Zeh,  5  Hill,  200;  Dean  y.  Tallman,  7J.  443;  Knicht  r.  Mann, 
Rappleye  1).  Adee,  65  Barb.  589;  Shindler  120  Mass.  219;  Safford  v.  McDonough, 
V.  Houston,  1  N.  Y.  261;  Evans  v.  Harris,  lb.  290  ;  Atherton  v.  Newhall,  123  Mass. 
19  Barb.  416  ;  Gray  v.  Davis,  10  N.  Y.  141;  Marsh  v.  Rouse,  44  N.  Y.  643;  Kirby 
285;  Woodford  v.  Patterson,  32  Barb.  630;  v.  Johnson,  22  Mo.  354;  Rickey  v.  Ten- 


PART   VII.]  THE   ACTUAL   RECEIPT.  503 

While  we  have  so  strongly  insisted  upon  the  distinction  existing 
between  the  acceptance  and  the  actual  receipt  of  the  statute  as 
separate  entities,  it  may  not  be  amiss  here  to  point  out,  although 
this  is  a  subject  we  consider  more  particularly  in  a  later  volume 
of  this  work,  that  while  accepting  and  actually  receiving  under 
the  statute  mean  different  things,  accepting,  as  used  in  the  statute 
differs  essentially  from  the  term  "  appropriating."  Thus,  there 
may  be  an  acceptance  of  a  part  or  the  whole  of  goods,  purchased, 
and  an  actual  receipt  of  a  part  of  them,  to  satisfy  the  statute,  and 
yet  the  property  in  those  not  actually  received  by  the  vendee  may 
not  pass  to  him  for  want  of  delivery  or  appropriation. 

The  old  case  in  the  United  States  Circuit  Court  of  Barrett  v. 
Goddard,^  is  an  illustrative  case.  There  the  sale  was  of  a  number 
of  bales  of  cotton  specifically  sold  by  numbers,  which,  as  a  pur- 
chase of  ascertained  goods,  was  an  acceptance  of  them  to  satisfy 
the  statute.  One  of  the  terms  of  the  purchase  was  that  the  cotton 
might  lie  in  the  vendor's  warehouse  for  the  vendee,  free  of  charge, 
until  the  room  was  required  by  the  vendor  for  the  storage  of  other 
goods.  This,  as  we  have  seen  in  our  examination  of  the  English 
cases,  supra,  is  a  sufficient  actual  receipt  by  the  vendee  to  satisfy 
the  statute ;  the  vendor  ceasing  to  hold  the  goods  as  vendor,  and 
holding  them  merely  as  bailee  for  the  vendee  ;  his  lien  on  the 
goods  for  the  price  as  unpaid  vendor  having  ceased  to  exist.  But 
though  the  statute  might  be  satisfied  with  an  acceptance  of  the 
whole  or  of  a  part  of  the  goods  and  an  actual  receipt  of  a  part  of 
them,  without  an  appropriation  of  the  goods  the  property  in  them 
would  not  pass  to  the  vendee,  but  would  remain  in  the  vendor  with 
his  lien  attached  as  unpaid  vendor,  and  an  action  as  for  goods  sold 
and  delivered  would  not  lie  against  the  purchaser,  nor  could  tro- 
ver be  maintained  against  the  seller. 

Thus,  in  Barrett  v.  Goddard,  Story,  J.,  in  delivering  the  judg- 
ment, says :  "  When  a  contract  for  the  sale  of  goods  is  completed 
by  the  assent  of  both  parties,  the  property  in  the  goods  is  trans- 
ferred to  the  vendee,  and  the  price  is  due  to  the  vendor,  but  the 
vendee  cannot  take  the  goods  until  he  tenders  the  price  agreed  on. 
And  if  the  price  is  tendered,  and  the  vendor  refuses  it,  the  ven- 
dee may  seize  the  goods,  or  have  an  action  against  the  vendor  for 

broeck,  63  Mo.  563;  Shepherd  v.  Pressey,  97  ;    Ortloff  v.  Klitzke,   43   Minn.    154  ; 

32  N.  H.  49  ;  Oault  v.  Brown,  48  N.  H.  Ternev  v.  Doten,  70  Cal.  399  ;  Richanls  v. 

183  ;  Finkham  i;.  Mattox,  53  N.  H.  600  ;  Burroughs,  62  Mich.  117;  Smith  r   Bren- 

Mattliie.ssen,&c.  Refining  Co.  ?;.McMahon's  nan,  lb.  349  ;  Smith  v.  Fisher,  59  \  t.  53; 

Adni'r.,  38  N.  J.  L.  536;  Farmer  v.  Gray,  Me  Hoover,  33  Hun,  553;  Dehorityr.  1  ax- 

16  Neb.   401  ;   Marshall  v.  Ferguson,  23  son,  97  Ind.  2,53,  255  et  seq..-  Wilkinsons 

Cal.  65;   Lloyd  v.  Wright,  25  Ga.  215;  Adm'r  i;.  Wilkinson,  61  Vt.  409;  buUivan 

Bowers  v.  Anderson,  49  Ga.  143;  Belt  v.  v.  Sullivan,  70  Mich.  533. 
Marriott,  9  Gill,  331  ;  Gorham  v.  Fisher,  ^  3  Mason,  107. 

30  Vt.  428  ;  Hill  v.  McDonald,  17  Wis. 


504  COMMENTARIES   ON   SALES.  [BOOK  IV. 

detaining  them.  Such  is  the  doctrine  laid  down  by  Mr,  Justice 
Blackstone  in  his  excellent  Commentaries.^  The  principle  here 
stated  must  apply  with  equal  force  whenever  the  terms  of  the  sale 
are  completely  complied  with  on  the  part  of  the  vendee.  There- 
fore where  goods  are  sold  to  be  paid  for  by  a  note  on  time,  and 
the  note  is  given  to  the  vendor,  the  property  in  the  goods  passes 
to  the  vendee  in  the  same  manner,  and  under  the  same  circumstan- 
ces, as  it  would  if  the  contract  were  for  cash,  and  the  cash  were 
paid.  But  this  doctrine,  however,  is  applicable  only  in  cases  where 
the  goods  are  clearly  designated  and  separated  from  all  others,  and 
accoi'ding  to  the  sense  of  the  contract,  are  then  deliverable,  without 
any  further  act  on  either  side,  and  are  in  a  state  capable  of  delivery. 
But  if  there  remains  anything  more  to  be  done  to  designate  the 
particular  property,  or  to  complete  the  rights  of  the  vendee,  then 
the  property  does  not  pass  until  such  acts  are  done."  And  the 
court,  in  concluding  that  in  the  case  the  property  had  passed, 
said:  "The  bales  were  all  marked  and  numbered,  and  sold  by 
their  marks  and  numbers.  They  were  perfectly  distinguishable 
from  all  the  others ;  and  the  terms  of  the  contract  on  the  other 
side  were  fully  complied  with.  The  payment  was  made  in  the 
mode  agreed  on,  by  giving  a  note,  payable  at  a  future  time. 
Neither  party  contemplated  any  further  act  to  be. done.  The  ven- 
dee contracted  for  an  immediate  possession  at  his  own  option  as 
to  time  and  place,  and  the  vendor  sought  no  retainer."  ^ 

1  2  Bl.  Com.  448.  8  B.   &  C.  277  ;  Alexauder  v.  Gardner, 

2  And  see  Weld  v.  Came,  98  Mass.  152;  1  Bing.  N.  C.  671;  Boswell  v.  Kilborn,  15 
Townsend  v.  Hargraves,  118  Mass.  325,  Moo.  P.  C.  309;  Andrews  v.  Durant,  11 
331  et  seq.  ;  Safford  v.  McDonough,  120  N.  Y.  35  ;  Messer  v.  Woodman,  22  N.  H. 
Mass.  290;  Rodgers  v.  Jones,  129  Mass.  172,  182;  Victor  t>.  Stroock,  5  N.Y.  Supp., 
420  ;  Halterline  v.  Rice,  62  Barb.  593  ;  at  p.  660.  And  see  cases  cited  in  notes 
Mixer  v.  Howarth,  21  Pick.  205  ;  Eohde  to  supra,  pp.  253-256,  on  property  pass- 
V.  Thwaites.  6  B.  &  C.  388  ;  Maberley  v.  ing  on,  ai)propriation  j  and  notes  to  ante, 
Sheppard,  10  Bing.  99 ;  Atkinson  v.  Bell,  pp.  311,  312. 


PART   VIII.]        THE  NOTE   OR  MEMORANDUM   IN   WRITING.  505 


BOOK   lY. 

PART   VIII. 

THE  NOTE  OR  MEMORANDUM  IN  WRITING. 

A  DISTINCTION,  which  we  think  is  unwarranted,  has  been  taken 
between  the  requirements  of  the  fourth  and  seventeenth  sections  of 
the  statute,  with  reference  to  what  the  note  or  memorandum  of 
the  agreement,  or  contract,  or  bargain,  respectively  referred  to  in 
those  sections,  must  contain.  By  the  fourth  section,  where  the 
terms,  "  special  promise,"  "  contract,"  "  sale,"  "  agreement,"  are 
used,  it  is  provided,  concerning  all  these  terms,  that  the  cuireement 
upon  which  the  action  is  to  be  brought,  or  some  memorandum  or 
note  thereof,  must  be  in  writing,  signed  by  the  party  to  be  charged 
therewith,  or  by  some  person  thereunto  by  him  lawfully  author- 
ized. By  the  seventeenth  section,  it  is  provided,  that,  to  make  the 
contract  be  deemed  good,  there  must  be  some  note  or  memoran- 
dum in  writing  of  the  bargain,  made  and  signed  by  the  parties  to 
be  charged  by  such  contract,  or  their  agents  thereunto  lawfully 
authorized.  Here,  obviously,  in  the  seventeenth  section,  the  terms 
"  bargain"  and  "contract"  are  used  interchangeably,  as, also,  are 
the  terms  "  contract "  and  "  agreement "  in  the  fourth  section. 
Not  only  so,  but  the  term  "  bargain  "  is  also  used  in  the  previous 
portion  of  the  seventeenth  section,  in  connection  with  the  giving 
of  "  something  in  earnest "  "  to  bind  the  bargain,"  in  the  collo- 
quial sense  in  which  that  term  was  in  common  use  at  and  long 
prior  to  the  enactment  of  the  statute,  as  the  exact  equivalent  of 
contract  or  agreement.  So,  between  the  three  terms,  bargain, 
contract,  and  agreement,  thus  used  synonymously  or  interchange- 
able, tliere  is  not,  we  think  is  apparent,  the  slightest  substantial 
distinction.  So,  too,  under  both  sections,  the  note  or  memoran- 
dum in  writing,  of  such  contract,  bargain,  or  agreement,  to  be 
signed,  under  the  fourth  section,  "  by  the  party  to  bo  charged 
therewith,  or  by  some  person  thereunto  by  him  lawfully  author- 
ized ; "  or  under  the  seventeenth,  "  by  the  parties  to  be  charged  by 
such  contract,  or  their  agents  thereunto  lawfully  authorized,"  is, 
in  effect,  the  same  under  the  one  section  as  in  the  other;  or,  if, 


506 


COMMENTARIES  ON   SALES. 


[book  IV. 


from  the  phraseology  of  the  respective  sections,  there  is  any  dis- 
tinction to  be  taken,  it  is  clearly  not  that  anything  more  is  re- 
quired to  be  expressed  in  the  note  or  memorandum  under  the 
fourth  section  than  under  the  seventeenth. 

Yet,  under  the  leading  English  cases  of  Wain  v.  Warlters,i  and 
Egerton  v.  Mathews,^  it  is  very  clearly  implied,  and  generally 
conceived  to  be  decided,^  that  a  very  substantial  distinction  exists 
between  the  note  or  memorandum  of  the  contract,  bargain,  or 
agreement,  required  under  these  respective  sections ;  and  that,  as 
the  word  "  agreement "  is  used  in  the  fourth  section,  while  the 
word  "  bargain"  is  employed  in  the  seventeenth  section,  more  is 

1  5  East,  10. 

2  6  East,  307. 

3  Tindal,  C.  J.,  in  Laythoarp  v.  Bry- 
ant, 2  Bing.  N.  C.  735,  744,  says : 
"Wain  V.  Warlters,  5  East,  10,  was  de- 
cided on  the  express  ground  tliat  an  agree- 
ment under  tlie  fourth  section  impoi'ts 
more  than  a  bargain  under  the  seven- 
teenth." Such,  clearly,  is  the  view  ex- 
pressed by  Loi'd  Ellenborough  in  Wain  v. 
Warlters,  5  East,  10,  and  in  Egerton  v. 
Mathews,  6  East,  306  ;  but,  as  we  show, 
infra,  these  cases  are  both  clearly  sustain- 
able without  the  necessity  of  admitting  the 
existence  of  what  we  think  is  an  entirely 
untenable  distinction.  In  Marshall  v. 
Lynn,  6  M.  &  W.  109,  118,  Alderson,  B., 
says  :  "  By  the  4th  section  of  the  statute 
of  frauds,  it  is  provided  that  the  contracts 
therein  mentioned  shall  be  in  writing, 
otherwise,  no  action  shall  be  maintained 
on  them.  The  17th  section  requires  that 
some  note  or  memorandum  in  writing  of 
the  bargain  before  made,  shall  be  signed 
by  the  party  to  be  charged  by  such  con- 
tract, or  his  agent  lawfully  authorized. 
There  is,  undoubtedly,  a  distinction  be- 
tween the  two  enactments,  for  by  the  4th 
section,  the  whole  contract  must  be  in 
writing,  including  the  consideration  which 
induced  the  party  to  make  the  stipulation 
by  which  he  is  to  be  bound  ;  but  by  the 
17th  section,  it  is  sufficient  if  all  the  terms 
by  which  the  defendant  is  to  be  bound  are 
stated  in  writing,  so  as  to  bind  him." 
We  think  Alderson,  B.,  here,  does  not 
succeed  in  sustaining  the  distinction. 
While,  under  the  4th  section,  the  agree- 
ment under  which  the  action  is  brought, 
is  evidence  to  sustain  the  action  ;  some 
memorandum  or  note  in  writing  of  the 
agreement  is  as  expressly  by  the  section 
made  as  good  to  sustain  the  action  under 
the  4th  section,  as,  under  the  17th  section, 
it  is  to  cause  the  contract  or  bargain  to  be 
deemed  good.  What  that  agreement,  con- 
tract, or  bargain  is,  has,  by  the  note  or 
memorandum  in  writing,  as  much  to  be 
expressed  in  the  one  case  as  in  the  other. 


And  the  contract  for  the  sale  of 
wares,  and  merchandises,  under  the  17th 
section,  need  not  be,  nor  is  usually,  any 
more  "  made  before  "  the  signing  of  the 
note  or  memorandum  in  writing,  than  it 
is  under  the  4th  section,  where  there  is 
an  agreement  by  one  to  pay  the  debt  of 
another ;  or  an  agreement  not  to  be  per- 
formed within  a  year  ;  or  for  an  executor 
or  administrator  to  pay  damages  out  of  his 
own  estate.  The  statement  by  Alderson, 
B.,  in  Marshall  v.  Lynn,  6  M.  &  W.  109, 
118,  was  entirely  extra-judicml,  as  in  that 
case  it  was  held,  on  the  point  involved, 
that  there  was  no  distinction  to  be  taken 
between  the  4th  and  17th  sections  of  the 
statute.  In  that  case  it  was  claimed,  on 
the  authority  of  Cuff  v.  Penn,  1  M.  &  S. 
21,  and  Goss  v.  Lord  Nugent,  5  B.  &  Ad. 
58,  that,  with  reference  to  the  power  of 
varying  the  contract  by  parol  evidence, 
there  was  a  distinction  between  the  4th 
and  17th  sections  ;  but  this  contention 
was  not  sustained,  Parke,  B.,  saying  : 
"The  same  rule  must  prevail  as  to  the 
construction  of  the  17  th  section  of  the 
statute  of  frauds,  which  has  already  pre- 
vailed as  to  the  construction  of  the  4th 
section.  The  decision  in  Goss  v.  Lord 
Nugent,  5  B.  &  Ad.  58,  the  principle  of 
which  I  have  no  doubt  is  perfectly  correct, 
has  clearly  established,  with  respect  to  the 
case  of  a  contract  relating  to  the  sale  of 
an  interest  in  lands,  that  if  the  original 
written  conti-act  be  varied,  and  a  new  con- 
tract, as  to  any  of  its  terms,  substituted 
in  the  place  of  it,  that  new  contract  can- 
not be  enforced  in  law,  unless  it  also  be  in 
writing.  The  question  is,  whether  the 
same  reasoning  does  not  applj'  to  a  con- 
tract for  the  sale  of  goods  under  the  l7th 
section.  It  appears  to  me  that  no  distinc- 
tion can  be  made."  And  the  court,  fol- 
lowing Stead  V.  Dawber,  1  P.  &  D.  447, 
held  that  the  same  construction  was  to 
be  placed  on  the  1 7th  section  of  the  stat- 
ute as  was  placed  on  the  4th  section  by 
the  decision  in  Goss  v.  Lord  Nugent,  5  B. 
&  Ad.  58. 


PART    VIII.]        THE   NOTE   OR   MEMORANDUM   IN   WRITING.  507 

required  to  be  set  out  in  the  note  or  memorandum  under  the 
fourth  section  than  under  the  seventeenth.  But,  as  we  have 
shown,  as  in  both  sections  the  even  more  strictly  technical  term 
"  contract "  is  used,  and  used  too  as  the  equivalent  of  agreement, 
in  the  one  section,  and  of  bargain  in  the  other ;  and  as  the  term 
"  bargain  "  is  in  the  seventeenth  section  previously  used  in  the  full 
and  undoubted  sense  of  agreement,  there  is  no  force  whatever  in 
the  implication  to  which  we  have  above  alluded.  Whatever  is  re- 
quired to  be  expressed  in  the  note  or  memorandum  in  writing  of 
the  contract  or  agreement,  to  sustain  an  action  under  the  fourth 
section,  is,  we  think,  necessary  to  be  set  out  in  the  note  or  memo- 
randum in  writing,  to  cause  the  bargain,  or  contract,  or  agree- 
ment to  be  deemed  good  under  the  seventeenth  section.  And 
any  cases  decided  on  the  ground  of  the  existence  of  such  a  dis- 
tinction are  not,  we  think,  on  that  ground,  well  decided. 

Still,  notwithstanding  such  distinction,  which  is  taken  in  Wain 
V.  Warlters,^  and  Egerton  v.  Mathews,^  and  which  we  think  is 
utterly  untenable,  we  are  of  the  opinion  that  both  of  these  cases 
are  thoroughly  well  decided,  although  we  think  that  there  is,  in 
these  cases,  reasoning,  outside  of  the  distinction  which  Lord  Ellen- 
borough  sought  to  establish  between  the  meaning  of  the  fourth 
and  seventeenth  sections,  which  is  open  to  much  question,  and 
which  has  not  been  followed  or  approved  in  later  cases  whether 
under  the  fourtli  or  seventeenth  section  of  the  statute. 

In  Wain  v.  Warlters,^  the  note  or  memorandum  of  the  con- 
tract declared  on,  was  as  follows  :  "  Messrs.  Wain  &  Co.,  I  will 
engage  to  pay  you  by  half-past  four  this  day,  fifty-six  pounds  and 
expenses,  on  bill  that  amount  on  Hall.  Jno.  Warlters,  No.  2 
Cornhill,  April  30th,  1803."  It  was  alleged  in  the  declaration 
that  Hall  had  accepted  a  bill  of  exchange  of  which  tlie  plaintiffs 
were  the  holders,  which,  being  overdue  and  mipaid,  the  defendant 
promised  io  pay  on  consideration  that  the  plaintiffs  would  forbear 
suit  on  the  bill,  which  they  did.  The  case,  therefore,  was  one  of 
a  promise  to  pay  the  debt  of  another;  to  sustain  an  action  on 
which,  under  the  fourth  section  of  the  statute,  it  is  required  that 
the  agreement  or  some  memorandum  or  note  thereof,  shall  be  in 
writing,  and  signed  by  the  party  to  be  charged  therewith,  or  by 
some  person  thereunto  by  him  lawfully  authorized.  The  court 
held  that  as  no  consideration  for  the  defendant's  promise  appeared 
on  the  written  instrument,  no  contract  was  shown  ;  the  undertaking 
for  want  of  a  consideration  being  nudum  pactum.  As  the  statute 
requires  that  the  written  contract,  or  a  note  or  memorandum  in 

1  5  East,  10.  8  5  East,  10. 

2  6  East,  307. 


508  COMMENTARIES   ON   SALES.  [BOOK   IV. 

writinw  of  the  contract,  is  necessary  to  sustain  the  action,  thus 
rendering  insufficient  for  that  purpose,  a  note  or  memorandum, 
not  of  the  contract,  or  bargain,  or  agreement,  but  of  the  mere 
promise  or  undertaking  of  the  party  whom  it  is  sought  to  charge 
on  his  agreement ;  Lord  Ellenbo rough  would  seem  to  us  to  have 
well  held,  in  nonsuiting  the  plaintiffs,  that  the  term  "  agreement " 
imports  the  substance  at  least  of  the  terms  on  which  both  parties 
consented  to  contract,  and,  as  the  agreement  or  contract  includes 
the  consideration  moving  to  the  promise,  as  well  as  the  promise 
itself ;  where  the  agreement  in  this  sense  has  not  been  reduced  to 
writing,  the  fourth  section  of  the  statute  is  not  satisfied ;  the 
written  evidence  of  the  consideration,  a  most  material  part  of  the 
contract  or  agreement,  being  wanting.  And  this  holding,  we 
think,  was  well  sustained  by  the  full  court. 

The  question  came  up  in  Egerton  v.  Mathews  ^  under  the  seven- 
teenth section  of  the  statute.  There  the  note  or  memorandum  of 
the  contract,  signed  by  the  defendants,  was :  "  We  agree  to  give 
Mr.  Egerton  19c?.  per  lb.  for  30  bales  of  Smyrna  cotton,  cash  3 
per  cent,  as  soon  as  our  certificate  is  complete."  On  the  trial  be- 
fore Lord  Ellenborough,  in  an  action  for  not  accepting  and  paying 
for  the  cotton,  the  plaintiff  was  nonsuited  on  the  grounds  that  no 
consideration  for  the  promise  appeared  on  the  face  of  the  writing, 
nor  any  mutuality  in  the  engagement ;  and,  therefore,  that  there 
was  no  good  contract  within  the  statute.  A  rule  nisi  to  set  aside 
the  nonsuit  was  granted  on  the  ground  that,  as  the  case  came 
within  the  seventeenth  section  of  the  statute,  it  was  not  governed 
by  the  decision  in  "Wain  v.  Warlters.^  The  rule  was  made  abso- 
lute, Lord  Ellenborough  observing :  "  That  the  words  of  the  stat- 
ute were  satisfied,  if  there  were  '  some  note  or  memorandum  in 
writing  of  the  bargain,  signed  by  the  parties  to  be  charged  by 
such  contract.'  ^    And  this  was  a  memorandum  of  the  bargain  ;  or, 

1  6  East,  307.  section  instead  of  under  the  17tli  section, 

2  5  P^ast,  10.  the  action  could  not  have  been  maintained  ; 

3  Commenting  on  this,  Blackburn  (Con-  there  seems  to  us  to  be  but  one  intelligible 
tract  of  Sale,  2d  ed.  57)  says :  "  There  is  mode  of  explaining  his  position  as  to  the 
some  difficulty  in  understanding  what  was  effect  of  the  clauses  in  the  two  sections, 
the  objection  to  the  memorandum  as  a  It  was  claimed  in  Wain  y.Warlters,  that  the 
memorandum  of  an  agreement,  and  con-  term  "agreement"  (aggregatio  vuntium, 
sequently  it  is  difficult  to  say  what  the  or  the  union  of  two  minds,  in  a  thing  done 
distinction  was  which  Lord  Ellenborough  or  to  be  done)  was  more  applicable  to 
made  between  bargain  and  agreement,  but  other  clauses  of  the  4th  section  than  to  that 
it  appears  that  he  made  some  distinction."  of  the  promise  to  pay  the  debt  of  another. 
As  the  very  thing  that  was  deficient  in  the  And  in  Egerton  v.  Mathews,  6  East,  307, 
memorandum  in  Wain  v.  Warlters,  5  East,  the  nonsuit  was  claimed  not  only  on  the 
10,  as  regards  the  statement  of  the  con-  ground  that  no  consideration  appeared  on 
sideration,  was  supplied  in  Egerton  v.  the  face  of  the  writing,  but  that  no  mutu- 
Mathews,  6  East,  307,  and  yet  Lord  El-  ality  appeared  either.  In  Wain  v.  Warl- 
lenboiough  entertained  the  view  that  had  ters,  neither  consideration  nor  mutuality 
this  latter  case  been  one  under  the  4th  appeared.     In   Egerton   v.    Mathews,  the 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM   IN   WRITING. 


609 


at  least,  of  so  much  of  it  as  was  sufficient  to  bind  the  parties  to  be 
charged  therewith,  and  whose  signature  to  it  is  all  that  the  statute 


consideration  appeared,  but  no  mutuality. 
And  yet,  had  Egerton  v.  Mathews  been  a 
case  under  the  4th  section  of  the  statute, 
Lord  Ellenborough  held  that  the  action 
could  not  have  been  maintained.  The  de- 
duction, then,  from  these  two  cases  would 
seem  to  be  that  it  was  decided  that,  under 
the  4th  section,  not  only  the  consideration, 
but  the  mutuality,  must  appear  on  the 
face  of  the  note  or  memorandum  in  writ- 
ing of  the  contract ;  that  the  term  agree- 
ment implies  mutuality,  and  that,  under 
the  4th  section,  the  whole  agreement  must 
appear  in  the  writing  ;  but  that,  under 
the  17th  section,  as  stated  in  the  reporter's 
note  to  Egerton  v.  Mathews,  6  East,  .307, 
"  a  memorandum  signed  by  the  defendants, 
whereby  they  agree  to  give  so  much  for 
goods,  takes  the  case  out  of  the  17th  sec- 
tion, tlwugh  not  signed  by  the  seller,  nor 
expressiyig  any  consideration  for  the  defend- 
ant's promise,  othcrtvise  than  by  inference 
from  their  oion  obligation."  The  implica- 
tion being  that,  on  the  other  hand,  under 
the  4th  section,  the  whole  agreement  must 
be  show^n,  and,  therefore,  not  only  the  con- 
sideration, but  the  mutuality  of  the  agree- 
ment—  both  parties  being  bound  by  it  — 
must  appear  on  the  face  of  the  contract ; 
the  result  of  which  view  would  seem  to 
be  that,  to  show  such  mutuality  as  well  as 
the  consideration,  the  memorandum  or 
note  in  writing,  under  their  view  of  the 
requirements  of  the  4th  section,  to  be 
operative  even  against  the  party  to  be 
charged,  would  have  to  be  signed  by 
both  the  parties  to  the  agreement.  This 
seems  to  be  the  view  taken  b\'  the  court, 
including  Lord  Ellenborough  in  Egerton 
V.  Matthews,  6  East,  307  ;  bat  it  is  cer- 
tainly not  consistent  with  his  view  in  Wain 
V.  Warlters,  5  East,  at  p.  16,  of  the  cor- 
rectness of  the  holding  of  Lord  Eldon  in 
Seton  V.  Slade,  7  Ves.  265,  where  the  agree- 
ment was  signed  by  the  vendee,  and  not  by 
the  vendor,  and  was  held  binding  under  the 
4th  section  of  the  statute.  The  language, 
however,  of  Grose,  J.,  in  Wain  v.  Warlters, 
is  consistent  witli  the  apparent  view  of 
the  whole  court  in  Egerton  v.  Mathews, 
6  East,  307,  that,  under  the  4th  section, 
the  whole  agreement  must  appear  in  writ- 
ing, showing  a  consideration  resulting  from 
the  mutuality  of  the  contract  between  the 
parties,  and  erpially  binding  on  them  both, 
and,  apparent!}',  implying  that  tiie  writing 
should  be  signed  by  them  both  ;  but  that, 
under  the  17tli  section,  the  memonindum 
is  good  though  not  signed  by  the  seller,  if 
signed  by  the  vendee  as  the  party  to  be 
charged ;  and  the  consideration,  under 
the  section,  may  be  shown  as  an  inference 


from  the  promisor's  own  obligation,  with- 
out it  being  expressly  shown  by  the  agree- 
ment of  the  seller  on  the  face  of  the  note 
or  memorandum  in  writing.  Thus  Grose, 
J.,  says:  "What  is  required  to  be  in 
writing  is  the  agreement  (not  the  promise, 
as  mentioned  in  the  first  part  of  the  clause), 
or  some  note  or  memorandum  of  the  agree- 
ment. Now  the  agreement  is  that  which 
is  to  show  what  each  party  is  to  do  or  per- 
form, and  by  which  both  ijarties  are  to  be 
bound  ;  and  this  is  required  to  be  in  writ- 
ing. If  it  were  only  necessary  to  show 
what  one  of  them  was  to  do,  it  would  be 
sufficient  to  state  the  promise  made  by  the 
defendant  who  was  to  be  charged  upon 
it.  But  if  we  were  to  adopt  this  construc- 
tion, it  would  be  the  means  of  letting  in 
those  very  frauds  and  perjuries  wdiich  it  was 
the  object  of  the  statute  to  prevent ;  for 
without  the  parol  evidence,  the  defendant 
cannot  be  charged  upon  the  written  con- 
tract, for  want  of  a  consideration  in  law  to 
support  it.  The  effect  of  the  parol  evi- 
dence then  is  to  make  him  liable  ;  and 
thus  he  would  be  charged  with  the  debt  of 
another  by  parol  testimony,  when  the  stat- 
ute was  passed  with  the  ver}'  intent  of 
avoiding  such  a  charge,  by  requiring  that 
the  agreement,  by  which  must  be  under- 
stood the  whole  agreement,  should  be  in 
w'riting."  (All  of  the  above  italics  are  by 
Grose,  J.,  himself.)  The  inference  from 
this  seems  clear  that  it  was  their  view  that 
to  make  a  party  liable  on  his  promise  for 
the  debt  of  another,  the  agreement  of  the 
promisee,  showing  mutuality  and  a  suffi- 
cient consideration  to  prevent  the  promise 
from  being  nudum  jmctum,  at  common 
law,  must  all  appear  in  the  writing  ;  and, 
as  in  Egerton  v.  Mathews,  6  East,  307, 
notwithstanding  that  the  consideration 
there  appeared  in  the  writing,  signed  by 
the  party  to  be  charged,  it  wns  held  by 
Lord  Ellenborough  that  had  that  case  been 
under  the  4th  instead  of  the  17th  section 
of  the  statute,  it  still  would  not  have  been 
good.  The  conclusion  seems  evident  that 
they  were,  in  effect,  holding  that,  under 
the  4th  section,  the  consideration  could 
not  be  shown  by  its  statement  or  recital  by 
the  promisor,  or  as  an  inference  fiom  liis 
own  obligation,  but  must  appear  in  a  wiit- 
ing,  by  which,  by  tlie  signature  of  both 
parties  to  it,  'both  parties  are  to  be 
bound."  So,  in  Lord  Ellenborougli's  own 
judgment  in  Wain  v.  Warlters,  notwith- 
standing his  reference  to  the  holding  of 
Lord  Eldon  in  Seton  v.  Slade,  7  Ves.  265, 
there  is  much  that  accords  with  the  view 
on  which  he  acted  in  granting  the  non.suit 
in  Egerton  v.  Mathews.     Thus  it  is  said  : 


510 


COMMENTARIES   ON   SALES. 


[book  IV. 


requires."     And  Lawrence,  J. :  "  The  case  of  Wain  v.  Warlters  ^ 
proceeded  on  this,  that  in  order  to  charge  one  man  with  the  debt 


"Lov(l  Elleuboiough,  C.  J.,  after  noticing 
the  definition  of  the  word  agreement  by 
Lord  C.  B.  Coniyns,  who  considered  it  as 
a  thing  to  which  there  must  be  the  assent 
of  two  or  more  minds  ;  and  which,  he 
says,  ought  to  be  so  certain  and  complete 
that  each  party  may  have  an  action  upon 
it ;  for  which,  "in  addition  to  the  author's 
own  authority,  was  cited  that  of  Plowden  ; 
and  better  (his  lordship  observed)  could 
not  be  cited.  In  all  cases  where,  by  long 
habitual  construction,  the  words  of  a  stat- 
ute have  not  received  a  peculiar  interpre- 
tation, such  as  they  will  allow  of,  I  am 
always  inclined  to  give  to  them  their  nat- 
ural, ordinary  signification.  The  clause  in 
question,  in  the  statute  of  frauds,  has  the 
word  'agreement'  ('  unless  the  agreetrLent, 
upon  which  the  action  is  brought,  or  some 
memorandum  or  note  thereof,  shall  be  in 
writing,'  etc.).  And  the  question  is, 
•whether  the  word  is  to  be  understood  in 
the  loose  incorrect  sense  in  which  it  may 
sometimes  be  used,  as  synonymous  to 
promise  or  undertaking,  or  in  its  more 
proper  and  correct  sense,  as  signifying  a 
mutual  contract  or  consideration  between 
two  or  more  parties.  The  latter  appears 
to  me  to  be  the  legal  construction  of  the 
word,  to  which  we  are  bound  to  give  its 
proper  effect."  It  will  be  noticed  here 
that  Lord  EUenborough  treats  the  consid- 
ei'ation  not  as  that  which  the  promisor  is 
to  receive,  but,  rather,  the  contract,  agree- 
ment, undertaking,  or  promise  of  the  other 
party  to  the  contract,  making  the  effect  of 
his  holding  in  Egerton  v.  Mathews  still 
clearer  ;  viz.,  that,  under  his  view,  the  note 
or  memorandum  in  writing,  under  the  4th 
section,  must  contain  the  whole  agreement 
or  contract  of  both  parties  to  it,  showing, 
in  the  language  of  Grose,  J.,  "what  each 
party  is  to  do  or  perform,  and  by  which 
both  parties  are  to  be  bound  ;  and  this  is 
require  I  to  be  in  writing."  We  think, 
notwithstanding  the  holding  in  these  cases, 
we  have  made  it  sufficiently  clear  in  the 
text,  supra,  that  the  note  or  memorandum 
in  writing  signed  by  the  party  to  be 
charged,  has  not  to  set  out  the  considera- 
tion, or  the  aggregatio  tnentium  of  the 
parties  to  the  contract,  bargain,  or  agree- 
ment, under  the  4th  section  any  more  than 
under  the  17th  section  of  the  statute. 

Roberts,  in  his  work  on  Frauds,  117,  n., 
commenting  on  Wain  v.  Warlters,  5  East, 
10,  and  Egerton  v.  Mathews,  6  East,  307, 
says  :  "  The  word  '  agreement '  does  not 
occur  in  the  17th  section  regarding  the 
contracts  for  the  sale  of  goods  for  the  price 


of  £10  or  upwards  ;  but  the  words  are 
'  that  some  note  or  memorandum  in  writ- 
ing of  the  bargain  be  made  and  signed  by 
the  parties  to  be  charged  by  the  conti-act, 
or  their  agents  thereunto  lawfully  author- 
ized.' Therefore,  in  Egerton  v.  Mathews, 
determined  since  Wain  v.  Warlters,  in  the 
King's  Bench,  which  was  a  case  governed 
altogether  by  the  17th  clause,  it  was  clearly 
held  that  it  was  not  necessarj'  that  the 
writing,  to  be  effectual  within  that  clause, 
should  set  forth  the  consideration.  A 
case  very  important  in  its  consequences, 
as  it  implies  that  had  the  word  in  the 
17th  section  been  'agreement'  instead  of 
'  note  or  memorandum  '  [Roberts  is  in  error 
here  ;  '  note  or  memorandum  '  is  in  both 
sections.  The  distinction  taken  was  as 
between  '  agreement '  in  the  4th  section 
and  '  bargain '  in  the  17th,  as  far  as  the 
distinction  is  at  all  intelligible],  the  plain- 
tiff must  have  been  nonsuited  for  want  of 
a  consideration  sufficiently  exhibited  in 
writing,  which  was  as  follows  :  'We  agree 
to  give  Mr.  Egerton  19rf.  ^jer  pound  for 
thirty  bales  of  Smyrna  cotton,  customary 
allowance,  cash  3  per  cent,  as  soon  as  our 
certificate  is  complete.  Signed  by  the  de- 
fendants the  buyers.'  The  writer  hopes 
for  pardon  if  with  great  deference  he  sub- 
mits that  there  is  a  consideration  for  the 
promise  plainly  stated  in  this  writing. 
So  much  money  is  to  be  paid  for  such 
goods.  This  was  the  con.sideration,  and 
this  was  stated.  But  this  seems  to  be 
now  considered  as  not  sufficient ;  and  it  is 
implied  in  the  case  just  cited  that  the  in- 
strument itself,  where  the  case  is  within 
the  4th  section,  should  import  and  com- 
prehend in  itself  a  perfect  mutuality  of 
obligati(m,  otherwise  the  ichole  agreement 
is  not  to  be  considered  as  being  in  writing. 
And  according  to  this  doctrine,  under  that 
section  of  the  statute,  both  parties  in  mo.st 
cases  must  sign  the  instrument,  otherwise 
the  full  consideration  for  the  signing  by 
the  party  charged  will  not  appear  upon  the 
instrument  itself,  a  doctrine  rising  greatly 
above  the  level  of  antecedent  opinions  and 
authorities.  See  Cotton  v.  Lee,  cited  in 
2  Bro.  Ch.  564  ;  Coleman  v.  Upcot,  5  Vin. 
Ab.  527  ;  Buckhouse  v.  Crosbv,  2  Eq.  Cas. 
Ab.  32,  pi.  44  ;  Seton  v.  Slade",  7  Ves.  265  ; 
Fowle  V.  Freeman,  9  Ves.  351.  And  what, 
under  this  doctrine,  if  it  l">e  the  doctrine, 
is  to  become  of  the  authorities  giving 
an  effect  to  letters  equivalent  to  agree- 
ments ?  Wain  V.  Warlters  goes  only  the 
length  of  deciding  the  neces.sity  of  stating 
the  consideration.    But  when  coupled  with 


1  5  East,  10. 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM    IN   WRITING. 


511 


of  another,  the  agreement  must  be  in  writing ;  which  word  '  agree- 
ment' we  considered  as  properly  including  the  consideration  moving 


the  succeeding  case  of  Egerlon  v.  Math- 
ews the  court,  by  these  adjudications, 
seems  to  say  tliat,  as  by  an  agreement 
must  always  be  understood  the  assent  of 
two  or  more  minds,  reciprocally  expressed 
and  mutually  binding,  and  which  must  be 
so  complete  and  certain  that  each  party 
may  have  an  action  upon  it,  an  instru- 
ment so  p)erfected  is  necessary  to  satisfy 
the  4th  section  of  the  statute  of  frauds." 
Commenting  on  this,  Browne  on  the  Stat- 
ute of  Frauds,  §  397,  says:  "Nor  does 
there  appear  to  be,  as  has  been  suggested 
by  Mr.  Roberts,  any  conflict  between  the 
rule  that  the  memorandum  must  show 
the  consideration  of  the  engagement  of 
the  party  who  signs,  and  the  rule  that 
only  the  paity  to  be  charged  need  sign. 
The  memorandum  is  required  to  be  signed 
by  the  party  to  be  charged,  because  it  is 
thereby  made  a  statement  or  admission  of 
all  the  terms  of  a  contract  made  by  him, 
which  statement  is  put  in  writing,  and  to 
which  he  gives  his  assent  by  signing  his 
name."  We  quite  concur  with  Browne 
that  there  is  no  conflict  between  the  rule 
that  the  memorandum  must  show  the  con- 
sideration of  the  party  who  signs,  and  the 
rule  that  only  the  party  to  be  charged 
need  sign.  But,  we  submit,  Roberts  in 
the  note  we  have  quoted,  and  to  which 
Browne  in  the  above  has  reference,  does 
not  allege  any  such  conflict.  The  posi- 
tion he  takes,  which  we  think  is  accurate, 
and  which,  in  effect,  is  not  entirely  unsup- 
ported by  Browne  himself  (see  lb.  §§  381  a, 
389),  is  that  the  eff"ect  of  the  decisions  in 
Wain  V.  Warlters,  5  East,  10,  and  Eger- 
ton  V.  Mathews,  6  East,  307,  goes  to  the 
extent  of  declaring  —  improperly  he,  with 
us,  evidently  thinks  —  that,  under  the  4th 
section,  not  only  the  consideration  must 
appear  in  the  writing,  but  that  the  writ- 
ing must  be  signed  by  both  parties  to  the 
agreement ;  or,  in  the  language  of  Grose, 
J.,  in  Wain  v.  Warlters,  "The  agreement 
is  that  which  is  to  show  what  ench  party  is 
to  do  or  perform,  and  by  which  hotli,  par- 
ties are  to  be  bound  ;  and  this  is  required 
to  be  in  writing." 

But  if  the  effect  of  Wain  v.  Warlters, 
a  East,  10,  coupled  with  Egerton  v.  Math- 
ews, 6  East,  .'307,  was  to  show  that  there 
was  any  difffirence  between  the  necessity 
for  the  consideration  for  the  signer's  con- 
tract or  undertaking  appearing  in  the  writ- 
ing signed  by  him,  under  the  4th  .section 
and  under  the  17th,  or  that  any  greater 
mutuality  was  required  to  be  shown  in  the 
one  case  than  in  tlie  other,  that  position 
is  expressly  overthrown.  The  question 
came  up  in  Laythoarp  v,  Bryant,  2  Bing. 


N.  C.  735,  under  the  4th  section.  There 
the  defendant  purchased  certain  leasehold 
premises  at  an  auction,  and  signed  a  mem- 
orandum of  the  purchase  on  the  back  of 
a  paper  containing  the  particulars  of  the 
premises,  the  name  of  the  owner,  and  the 
conditions  of  sale.  This  was  not  signed 
by  the  vendor.  It  was  contended  by  the 
purchaser,  the  defendant,  in  an  action  on 
the  contract,  that  in  order  to  bind  a  pur- 
chaser of  real  estate  there  must,  under  the 
4th  section  of  the  statute  of  frauds,  be  a 
mutuality  in  the  contract  as  well  as  a  con- 
sideration expressed  in  writing.  But  the 
court  held  that  although  the  consideration 
must  appear  on  the  face  of  the  agreement, 
the  word  agreement  is  satisfied  if  the  writ- 
ing states  the  subject-matter  of  the  con- 
tract, the  consideration,  and  is  signed  by 
the  party  to  be  charged.  This  decision 
is,  in  eff'ect,  under  the  4th  section  6f  the 
statute,  the  same  as  that  of  Egerton  v. 
Mathews,  6  East,  307.  And  see  Buck- 
house  V.  Crosby,  2  Eq.  Cas.  Ab.  33  ;  Seton 
V.  Slade,  7  Ves.  275  ;  Coles  v.  Trecothick, 
9  Ves.  250;  Tawney  v.  Crowther,  3  Br.  Ch. 
Cas.  161,  318  ;  Hatton  v.  Gray,  2  Br.  Ch. 
Cas.  164  ;  Lord  Ormond  v.  Anderson,  2 
Ball  &  B.  370  ;  Western  v.  Russell,  2  Ves. 
&  B.  192  ;  Emmerson  v.  Heelis,  3  Taunt. 
169;  Fowle  v.  Freeman,  9  Ves.  351;  Bowen 
V.  Morris,  2  Taunt.  387;  Knight  v.  Crock- 
ford,  1  Esp.  190  ;  Saunderson  v.  Jackson, 
2  B.  &  P.  238.  In  Allen  v.  Bennet,  3 
Taunt.  169,  it  was  held  tliat  it  is  no  ob- 
jection to  the  validity  of  a  contract  for  the 
sale  of  goods  signed  by  the  seller  that  the 
seller  cannot  enforce  the  same  contract 
against  the  buyer,  because  tlie  buyer  has 
never  signed  it.  Lord  Mansfield,  in  this 
case,  said  :  "  It  was  objected  that  one 
party  who  has  not  signed  is  not  bound  ; 
but  the  fact  was  the  same  in  the  case  of 
Egerton  v.  Mathews,  6  East,  307,  and 
Champion  i'.  Plummer,  1  New  R.  252.  and 
the  objection  was  never  taken  in  either  of 
these  cases  [This  is  a  mistake.  It  was 
taken  in  Egerton  v.  Mathews  by  counsel, 
and  was  one  of  the  two  grounds  on  which 
Lord  Ellenborough  granted  the  nonsuit  in 
that  case  ;  that  there  was  no  mutuality  in 
the  agreement.  Ibid.,  6  East,  307.]  ;  but 
the  whole  of  this  case  supposes  tliat  the 
plaintiff"  had  agreed.  Suppose  he  lias  not 
contracted  by  writing,  he  has  by  parol, 
and  he  is  bound  in  lionor  ;  and  it  has 
never  yet  been  decided  that  an  obligation 
in  honor  would  not  be  a  good  considera- 
tion. All  these  ca.ses —  Egerton  v.  Math- 
ews, 6  East,  307,  Saundeison  v.  .lackson, 
2  B.  &  P.  238,  and  Champion  v.  Plummer, 
1  New  E.  252  —  suppo.se  a  signature  by 


512 


COMMENTARIES   ON   SALES. 


[book  IV. 


to  as  well  as  the  promise  by  the  party  to  be  so  charged ;  and  that 
the  statute  meaut  to  require  that  the  whole  agreement,  including 
both,  should  be  in  writing." 


the  seller  to  be  sufficient,  and  every  one 
knows  it  is  the  daily  practice  of  the  Court 
of  Chancery  to  establish  contracts  signed 
by  one  person  only,  and  yet  a  court  of 
equity  can  no  more  dispense  with  the  stat- 
ute of  frauds  than  a  court  of  law  can." 
In  Laythnarp  v.  Bryant,  2  Bing.  N.  C. 
735,  the  17th  section  of  the  statute  is  dis- 
criminated against  as  being,  as  in  fact  it 
is,  notwithstanding  the  holding  in  Wain 
V.  Warlters,  5  East,  10,  and  Egerton  v. 
Mathews,  6  East,  307,  more  stringent  than 
the  4th  section.  Parke,  B.,  there  says: 
"  The  cases  on  the  17th  section  of  the 
statute  might  very  much  be  put  out  of 
the  question,  because  the  language  of  that 
section  is  different  from  the  language  of 
the  4th.  But  even  in  those  cases,  where 
the  language  of  the  section  is  parties,  not 
party,  it  was  not  held  necessary  that  the 
contract  should  be  signed  by  both."  And 
Bosanquet,  J.:  "The  17th  section  is 
stronger,  and  avoids  contracts  not  made 
as  the  section  prescribes ;  yet  even  under 
that  section  it  has  been  held  sufficient  if  a 
contract  be  signed  by  the  party  to  be 
charged.  In  tlie  4th  section  the  language 
is,  expressly,  '  the  party  to  be  charged.'  " 

But  where  there  is  no  mutuality  in 
fact,  as  without  mutuality  in  fact  there 
can  be  no  consideration  or  contract,  one 
party  is  not  bound  to  perform  his  under- 
taking with  the  other ;  although,  as  in 
Egerton  v.  Mathews,  6  East,  307,  where 
there  is  mutuality  in  fact,  but  such  mutu- 
ality does  not  appear  by  the  writing  signed 
by  the  party  whom  it  is  sought  to  charge 
on  his  contract,  but  yet  the  writing  con- 
tains a  statement  of  the  whole  contract, 
including  its  subject-matter,  and,  at  least 
inferentially,  the  consideration,  there  the 
contract  can  be  enforced  against  the  party 
signing  the  writing,  the  mutuality  being 
provable  dehors  the  writing.  The  former 
of  these  propositions  is  illustrated  by  Lees 
V.  Whitoomb,  5  Bing.  34.  There  the  de- 
fendant signed  the  following  paper  :  — 

•"I  hereby  agree  to  remain  with  Mrs. 
Lees  (the  plaintiff's  wife),  of  302  Regent 
Street,  for  two  years  from  the  date  hereof, 
for  the  purpose  of  learning  the  business  of 
a  dressmaker.  As  witness  my  hand  this 
5th  day  of  June,  1826. 

"Amelia  Whitcomb." 
No  premium  was  paid  by  the  de- 
fendant, who,  on  June  5,  entered  the 
plaintiff's  house,  and  left  him  in  April 
following,  by  which  time  she  had  made 
such  progress  in  learning  the  business 
that  her  services  were  becoming  valuable 


to  the  plaintiff.  In  assumpsit  against 
the  defendant  for  refusing  to  remain  in 
the  plaintifi''s  service  for  the  remainder 
of  the  period  of  two  years,  the  declaration 
alleged,  as  the  consideration  for  the  de- 
fendant's promise,  that  the  plaintiff  had 
agreed  to  teach  her  the  business.  There 
is  no  allegation  or  statement  of  this  in  the 
paper  signed  by  the  defendant ;  so  no  con- 
sideration was  shown  in  the  writing,  and, 
therefore,  there  was  no  note  of  the  agree- 
ment. It  was  objected  on  the  part  of  the 
defendant  that  there  was  neither  consid- 
eration nor  mutuality,  and  the  court  so 
holding,  the  plaintiff"  was  nonsuited.  On 
a  rule  for  a  new  trial,  the  court,  sustain- 
ing the  nonsuit,  held  that  there  was  no 
consideration  expressed  in  the  writing  for 
the  defendant's  undertaking ;  and  that 
there  was  no  mutuality,  as  there  was 
nothing  in  the  agreement  to  insure  the 
instruction  to  the  defendant.  The  con- 
sideration expressed  in  the  writing  in 
Egerton  v.  Mathews,  6  East,  307,  for  the 
price  that  the  defendant  was  to  pay,  was 
the  thirty  bales  of  Smyrna  cotton  which 
he  was  to  receive  ;  but  in  Lees  v.  Whit- 
comb there  was  no  consideration  stated  at 
all.  In  this  latter  case  the  plaintiff's 
name  is  not  even  mentioned,  much  less 
that  he  had  agreed  to  furnish  the  instruc- 
tion to  the  defendant,  —  the  consideration 
alleged  in  the  declaration.  Had  this  been 
stated  in  the  writing  signed  by  the  defend- 
ant, and  had  there  been  such  an  agree- 
ment in  fact,  we  think  both  the  principles 
of  common  law  as  to  mutuality  in  con- 
tracts and  the  requirements  of  the  statute 
would  have  been  met.  As  the  cases  cited 
in  this  note  abundantly  show,  it  is  not 
necessary  that  the  note  or  memorandum 
in  writing  of  the  agreement,  to  bind  the 
party  to  be  charged  thereby,  shoidd  be 
signed  by  both  parties  to  the  agreement. 
It  is  obvious  that  where  the  agreement  of 
the  parties  fairly  appears  by  the  writing, 
the  fact  that  there  is  such  a  mutual  con- 
tract may  be  proved,  as  it  might  have  been 
at  common  law,  before  the  statute,  by 
parol.  Notwithstanding  the  note  or  mem- 
orandum in  writing,  it  is  clearly  compe- 
tent for  the  party  whom  it  is  sought  to 
charge,  to  show  that  the  writing  does  not 
express  the  whole  of  the  agreement,  or 
that  the  agreement,  in  fact,  is  different 
from  the  contract  relied  on,  and  that, 
therefore,  there  is  no  note  or  memoran- 
dum in  writing  of  the  contract  or  bar- 
gain or  agreement  signed  by  the  party 
whom  it  is  sought  to  charge.      On  the 


PART    VIII.]        THE    NOTE    OR    MEMORANDUM    IN    WRITING. 


513 


The  clear  effect  of  the  holding  in  Wain  v.  Warlters  ^  and  Egerton 
V.  Mathews,^  ^dlatever  doubt  there  may  be  as  to  the  effect  of  these 


same  principle,  notwithstanding  the  note 
or  memorandum  in  writing,  it  is  e([ually 
competent  for  tlie  party  who  has  signed  it 
to  sliow  that  thei'e  is  no  contract  in  fact, 
as  the  other  party  has  not  assented  to  the 
terms,  or  has  refused  to  assent  to  them. 
So,  again,  on  the  same  principle,  it  would 
be  competent  for  the  party  who  had  not 
signed  the  writing,  and  who  was  seeking 
to  enforce  the  contract,  to  show  that  there 
was  such  a  contract  ;  that  he  had  as- 
sented to  it ;  and,  therefore,  that  there 
was  the  necessary  nmtuality, — the  ag- 
gregatio  mcntium.  We  think,  therefore, 
on  the  principle  of  Wain  v.  Warlters,  5 
East,  10,  Egerton  v.  Mathews,  6  East, 
307,  and  the  other  cases  citeil  in  this  note, 
that  had  tlie  writing  in  Lees  v.  Whitconib, 
5  Biug.  34,  contained  such  language  as 
we  have  suggested,  or,  "In  consideration 
of  the  jdaintitFs  having  agreed  to  pay  me 
£50  per  year  therefor,  I  hereby  agree  to 
remain,"  etc.,  there  would  have  been  the 
necessary  note  or  memorandum  of  the  con- 
tract signed  by  the  party  to  be  charged  ; 
and  that  the  fact  that  there  was  such  a 
contract  —  such  mutuality  —  could  have 
been  shown  by  the  plaintiff  as  before  the 
statute.  It  is  only  upon  this  principle 
that  the  large  number  of  cases  in  England 
and  in  this  country  can  be  sustained, 
which  hold  that,  in  the  case  of  the  sale  of 
goods  withiTi  the  17th  section  of  the  stat- 
ute, where  there  is  a  note  or  memorandum 
of  the  contract  signed  by  the  party  whom 
it  is  sought  to  charge  on  the  contract, 
.such  contract  can  be  enforced  against  him, 
although  there  is  no  note  or  memorandum 
of  the  contract  signed  by  the  other  party 
to  the  contract.  See  Saunderson  r.  Jack- 
son, 2  B.  &  P.  238  :  Elmore  ?•.  Kingscote, 

5  B.  &  C.  f>83  ;  Schneider  v.  Morris,  2  M. 

6  S.  286  :  Ashcroft  v.  Morrin,  4  M.  &  G. 
450  ;  Lobb  v.  Stanley,  5  Q.  B.  574  ;  Eley 
V.  Positive  Assur.  Co.,  1  Ex.  Div.  293  ; 
Hoadley  v.  McLaine,  10  Bing.  582  ;  Cham- 
pion V.  Plummer',  1  X.  R.  252  ;  Hodgson 
V.  Le  Bret,  1  Camp.  2:')3  ;  Phillimo're  v. 
Barrj',  1  Camp.  513;  Egerton  v.  Mathews, 
6  East,  307;  Cooper  v.  Smith,  15  East, 
103;  Kent  v.  Huskinson,  3  B.  &  P.  233  ; 
Allen  V.  Beniu't,  3  Tatint.  Ifi9  ;  Jackson 
V.  Lowe,  1  IMng.  9  ;  Kcnworthy  v.  Scho- 
field,  2  B.  &  C.  945  ;  Hawes  r.  Forster, 
1  M.  &  Rob.  308  ;  Sievewright  v.  Archi- 
bald, 17  Q.  P..  103  :  Parton  v.  Crofts,  16 
C.  B.  N.  s.  11.  Wood  on  Sales,  §  346, 
pp.  667-669,  seems  to  lay  down  a  yiroposi- 
tion  different  from  this,  for  which  he  cites 
Haddcson  Gas  Co.  v.  Haslewood,  6  C.  B. 


N.  s.  239  ;  Souch  v.  Strawbridge,  2  C.  B. 
SOS  ;  Callis  v.  Bowthandey,  7  W.  Rep. 
87;  Sykes  v.  Dixon,  9  A.  &  E.  693.  None 
of  these  cases,  except  the  last  of  them,  has 
a  direct  bearing  on  the  question,  and  the 
last  carries  the  doctrine  no  farther  than  it 
is  carried  by  Lees  v.  Whitcomb,  5  Bing. 
34.  Sykes  v.  Dixon,  9  A.  &  E.  693,  was 
an  action  for  harboring  one  Bradley, ^the 
plaintiff's  servant,  who,  it  was  claimed, 
had  unlawfully  left  the  ])laintiff's  service. 
On  the  trial  the  plaintiff  relied  on  a  mem- 
orandum which  was  signed  bj'  Bradley 
only,  in  which  it  was  stated  that  he  agreed 
to  work  for  the  plaintiff,  "at  such  work 
as  he  shall  order  and  direct,  and  no  other 
person  whatsoever,  from  this  daj'  hence- 
forth during  and  until  the  expiration  of 
twelve  months,  and  so  on  from  twelve 
months'  end  to  twelve  months'  end,"  etc. 
On  the  plea  that  Bradley  was  not  the 
plaintiff's  servant,  the  defendant  relied  on 
the  facts  that  there  was  no  considei'ation 
expressed  in  the  writing,  and  that  there 
was  no  mutuality.  The  court  held  that 
there  was  no  consideration  shown,  and 
that  as  the  plaintiff  had  not  been  a  party 
to  the  agreement,  there  was  no  mutuality. 
The  authority  of  Laythoarp  v.  Bryant,  5 
Bing.  34,  was  in  effect  admitted  by  the 
defendant's  counsel,  who  said:  "It  may 
be  that  the  instrument  did  not  require  the 
signature  of  botli  parties  ;  but  at  least  it 
should  have  expressed  both  the  piomise 
by  one  and  the  consideration  moving  from 
the  other."  Had  this  been  shown,  so  as 
to  satisfy  the  statutory  requirements  of  a 
note  or  memorandum  of  the  contract  in 
writing,  it  is  clear,  under  the  previous  au- 
thorities we  have  cited,  that  the  mutualitj'- 
could  have  been  showni  dehors  the  writing, 
as  at  common  law  ;  the  statute  requiring 
not  the  signature  of  both  the  parties  to 
the  agreement  to  make  it  binding,  but 
only  that  of  the  party  or  parties  to  be 
charged. 

An  old  case  in  tlie  Supreme  Coni-t  of 
the  United  States,  Weightman  v.  Caldwell, 
4  Wheat.  85,  is  an  admirable  illustration 
of  the  confusion  which  exists  to  so  great 
an  extent  as  to  the  consideration  which, 
as  part  of  and  going  to  the  very  essence  of 
the  contract,  the  statute  reijuires  to  be 
shown,  as  a  part  of  the  bargain,  contract, 
or  agreement,  distingui.shed  from  the  mu- 
tuality, which,  as  the  statute  is  satisfied 
if  the  writing  is  signed  by  the  ])arty  to  be 
charged  only,  is  left,  inlerentially,  to  be 
shown  dehors  the  writing.  In  Weightman 
V.  Caldwell,  4  Wheat.   85,  the  considera- 


1  5  East,  10. 


2  6  East,  307. 


83 


514 


COMMENTARIES   ON   SALES. 


[book   IV. 


decisions  otherwise,  is,  that  whether  the  question  arises  under  the 
fourth  or  the  seventeenth  section  of  the  statute,  as  there  is  required 


tion  was  sliown  as  clearly  as  in  Egerton 
V.  Mathews,  6  East,  307,  or  in  Stadt  v. 
Lill,  9  East,  348  ;  but,  as  in  those  cases, 
the  mutuality  was  not  shown.  The  fol- 
lowing note  or  memorandum  of  the  con- 
tract was  signed  by  the  defendant  (plain- 
titf  in  error),  who  was  the  party  who  was 
sought  to  be  charged,  in  Weightman  v. 
Caldwell,  4  Wheat.  85:  "J.  W.  (the  de- 
fendant) agrees  to  purchase  the  share  of 
E.  B.  C.  (the  plaintiti")  in  the  cargo  of  the 
ship  Aristides,  \V.  P.  Z.,  supercargo,  say 
at  $2522.83,  at  15  pet-  cent  advance  on 
said  amount,  payable  at  five  months  from 
this  date,  and  to  give  a  note  or  notes  for 
the  same,  with  an  approved  indorser."  In 
compliance  with  this  agreement,  the  de- 
fendant gave  his  notes  for  the  sum  men- 
tioned ;  and  in  an  action  upon  the  notes, 
the  want  of  a  legal  consideration  ujider  the 
statute  of  frauds  was  set  up  as  defence,  on 
the  ground  of  the  ivant  of  mutimlity  in  the 
written  contract.  All  around,  in  this  case, 
both  in  the  Circuit  Court  and  in  the  Su- 
preme Court  of  the  United  States,  the 
want  of  mutuality  was  treated  as  being 
synonymous  with  the  want  of  a  considera- 
tion being  shown  ;  and  in  both  courts  it 
was  held  that  the  case  was  taken  out  of 
the  statute,  not  by  the  note  or  memoran- 
dum in  writing,  which  was  unquestionably 
as  sufficient  as  in  Egerton  v.  Mathews,  6 
East,  307;  Stadt  v.  Lill,  9  East,  348,  and 
in  the  vast  number  of  cases  according  with 
them  ;  but  by  the  fact  that  the  contract 
had  been  partially  executed  by  the  de- 
fendant's giving,  and  the  plaintiff's  re- 
«  ceiving,  the  notes  under  the  contract,  by 
means  of  which  the  defendant  was  entitled 
to  demand  and  receive  the  plaintiff's  share 
of  the  cargo.  As  far  at  least  as  the  course 
of  the  Circuit  Court  was  concerned,  it  was 
there  implied  beyond  the  holding  in  the 
English  cases,  that  not  only  must  the  con- 
sideration, but  the  mutuality  also  must  be 
shown  by  the  writing.  In  many  of  the 
modern  cases,  too,  the  idea  seems  to  be 
incorrectly  entertained  that  the  consid- 
eration and  the  nmtuality  are  synony- 
mous things,  causing  much  of  the  confu- 
sion and  error  on  the  subject  which  now 
surround  it. 

In  the  very  late  case  (a.  d.  1886)  in 
Michigan,  of  Wilkinson  v.  Heavenrich,  58 
Mich.  574,  the  defendants  signed  the  fol- 
lowing memorandum  :  — 

"  We  promise  and  agree  to  pay  [the 
plaintiff]  wages  or  salary  at  the  rate  of 
$3500  a  year  for  three  years,  from  the 
second  day  of  October,  1882,  in  considera- 
tion of  his  working  for  us  for  that  length 
of  time  as  cutter  in  our  merchant  tailoring 


department  in  the  city  of  East  Saginaw, 
Michigan.  Payments  to  be  made  as 
earned,  in  such  sums  and  at  such  times 
as  he  may  desire." 

As  under  the  Michigan  statute  (Rev. 
Stat,  of  Mich.  1846,  c.  81,  §  86  ;  Comp. 
L.  of  Mich.  1871,  vol.  2,  p.  1457,  §  4702) 
the  statement  of  the  consideration  does 
not  have  to  appear  in  the  writing,  that 
question  is  eliminated  from  the  case. 
And  as  neither  in  the  writing  signed  by 
the  defendants  nor  otherwise  in  the  case 
does  it  appear  that  the  plaintiff  made  a 
corresponding  agreement  with  the  defend- 
ants, nor  proposed  to  do  so  until  after  the 
defendants  had  repudiated  their  ex  parte 
undertaking,  there  was  clearly  no  mutu- 
ality between  them,  and,  therefore,  no 
binding  contract  in  the  terms  of  the  de- 
fendant's writing.  And  the  court  so  held, 
viz.,  that  where  it  appears  that  the  one 
party  never  was  bound  on  his  part  to  do 
the  act  which  forms  the  consideration  for 
the  promise  of  the  other,  the  agreement  is 
void  for  want  of  mutuality.  We  think 
the  principle  we  have  above  in  eifect 
stated,  viz.,  that  where,  under  the  stat- 
ute, the  consideration  is  not  required  to 
be  in  writing,  or  where,  under  the  statute, 
it  is  required  to  be  in  writing  and  signed 
by  the  party  to  be  charged,  and  it  is  in 
the  writing,  but  the  writing  is  not  signed 
by  the  other  party,  in  an  action  on  the 
contract  against  the  party  to  be  charged, 
the  mutuality  can  be  shown  dehors  the 
writing  ;  and  that  this  principle  will  re- 
move much  of  the  confusion  on  the  sub- 
ject that  seems  to  exist  in  the  cases.  See 
the  cases  on  the  subject  cited  in  this  note  ; 
and  see,  further,  Hopkins  v.  Logan,  5  M. 
&  W.  241;  Dorspy  v.  Packwood,  12  How. 
126;  Ewins  v.  Gordon,  49  N.  H.  444; 
Haddeson  Gas  Co.  v.  Haselwood,  6  C.  B. 
N.  s.  239  ;  Souch  v.  Strawbridge,  2  C.  B. 
808  ;  Callis  v.  Bothamlv,  7  AV.  Rep.  87; 
Utica,  &c.  R.  R.  Co.  v.  'Brinckerhoff,  21 
AVend.  139  ;  Lester  v.  Jewett,  12  Barb. 
502  ;  Smith's  Appeal,  69  Pa.  St.  480 ; 
Tripp  V.  Bishoii,  56  Pa.  St.  428  ;  Perkins 
V.  Wadsell,  50  111.  217;  Old  Colony  R.  R. 
Corporation  v.  Evans,  6  Gray,  31;  Wil- 
liams V.  Robinson,  73  Me.  186  ;  Lees  v. 
Whitcomb,  3  C.  &  P.  2S9 ;  Sykes  r.  ' 
Dixon,  9  A.  &  E.  693  ;  Krohn  v.  Bautz, 
68  Ind.  277;  Stiles  r.  McClellan,  6  Col. 
89;  Hall  v.  Soule,  11  Mich.  496  ;  Scott  v. 
Bush,  26  Mich.  418;  Liddle  v.  Needham, 
39  Mich.  147;  McDonald  v.  Berwick,  51 
Mich.  79. 

By  statute  in  England  (The  Mercantile 
Law  Amendment  Act,  19  &  20  Vic.  c.  97), 
the  consideration  for  the  promise  of  one 


PAET   VIII.]        THE   NOTE   OR   MEMORANDUM   IN   WRITING.  515 

some  note  or  memorandum  in  writing  of  the  contract,  bargain,  or 
agreement,  signed  by  the  party  to  be  charged,  the  note  or  memor- 
andum 2uust  be  a  note  or  memoi'andum  of  the  whole  contract ; 
which  writing,  as  stated  by  Tindal,  C.  J.,  in  Laythorp  v.  Bryant,^ 
is  not  perfect  to  show  the  agreement,  unless  in  the  body  of  it,  or 
by  necessary  inference,  it  contain  the  names  of  the  contracting  par- 
ties, the  subject-matter  of  the  contract,  the  consideration,  and  the 
promise.  This  seems  so  obviously  the  only  reasonable  construction 
of  the  statute  that  it  appears  strange  that  there  should  be  any  con- 
flict in  the  decisions  on  the  subject.  It  would  seem  just  as  reason- 
able that  the  note  or  memorandum  in  writing  of  the  contract,  bar- 
gain, or  agreement,  should  be  good  if  it  omitted  the  name  of  one  of 
the  contracting  parties,  or  the  subject-matter  of  the  contract  (which, 
on  one  side,  is  really  the  consideration),  or  the  promise,  as  it  would 
be  if  it  omitted  that  equally  essential  thing,  the  consideration  (that 
is,  the  price  to  be  paid)  of  the  bargain,  contract,  or  agreement,  with- 
out which  an  executory  bargain,  contract,  or  agreement  really  has 
no  existence  as  an  executory  contract  in  the  sense  that  it  can  be 
enforced  ;  a  mere  nudum  paction. 

The  doctrine  established  by  Wain  v.  Warlters^  and  Egerton  v. 
Mathews  ^  that  to  satisfy  the  requirements  of  the  fourth  and  seven- 
teenth sections  of  the  statute,  the  note  or  memorandum  in  writing 
of  the  contract,  bargain,  or  agreement,  required  to  be  signed  by 
the  party  to  be  charged,  must  show,  as  an  essential  ingredient  of 
such  contract,  bargain,  or  agreement,  the  consideration  upon  which 
it  is  based,  has  been  virtually  uniformly  followed  in  England  ever 
since,  except  so  far  as  a  portion  of  the  fourth  section  has  been 
affected  by  the  Mercantile  Law  Amendment  Act,^  as  shown  in  the 
previous  note.^ 

to  pay  the  debt  of  another  does  not  now  writing,  signed  by  the  party  to  be  charged, 

require  to  appear  in  writing.      But  this  and  accepted   by  parol   by  the  party  to 

no  less  causes  it  to  be  required  that  the  whom  it  is  made, — thus  establishing  the 

consideration,   in   fact,  must   be   proved,  agcjrerjatio  mentium, — is  a  sufficient  note 

Precisely  on  the  same  principle,  then,  be-  or  memorandum  of  the  agreement  to  sat- 

fore  this  act  was  passed,  while,  under  the  isfy   the   4th   section    of    tlie    statute   of 

statute,  to  show  what  was  the  agreement,  frauds,  and,  semble,  also  the  17th  section, 

contract,   or  bargain,  the  note  or  memo-  And  see  Colegrave  v.  Upcot,  5  Vin.  Ab. 

randum   in   writing    thereof    must    have  527;  The  Liverpool  Borough  Bank  r.  Ec- 

shown,  as  a  part  of  such  agreement,  con-  cles,  4  H.  &  N.  139;  Mozley  v.  Tinkler, 

tract,  or  bargain,  what  the  consideration  1  C.  M.  &  R.  692. 
was  ;  as  both  of  the  parties  to  the  agree-  '  2  Bing.  N.  C.  735,  742. 

nient  were  not  required  by  the  statute  to  ^  5  East,  10. 

show  thi'ir  mutuality  by  signing  the  writ-  ^  6  East,  307. 

ing,  such  mutuality  would  still  be  open  to  *  19  &  20  Vic.  c.  97. 

proof,  as  the  consideration  now  is,  drhors  ^  It  is  stated  iii  2  Sni.  Lea.  Cas.,  in  note 

the  writing.    In  accordance  with  tlie  i)rin-  to  Birkmyr  v.  Darnell,  1  Salk.  27,  that  the 

ciples  we  have  sought  to  establish  in  this  rule  has  been  a[)iilied  to  the  17th  section 

note,  it  was  held,   in   Keuss  i'.    Picksley,  that  it  is  sufficient  if  the  promise  of  the 

L.    R.    1    Ex.    342,    affirming    Warner   v.  party  to  be  charged  appears  in  the  writing. 

Willington,   3   Drew,   ^tl'i,   and  Smith  v.  And,  to  the  same  elfcct,   it  is  slated  in 

Neale,  2  C.  B.  N.  s.  67,  that  a  proposal  in  3  Pars,  on  Con.  1.5,  n.,  that  in  cases  aiising 


516 


COMMENTAEIES   ON   SALES. 


[book  IV. 


Saunders  v.  Wakefield  ^  follol\'ed  and  approved  Wain  v.  Warlt- 
ers.2    There  the  defendant's  promise  to  pay  the  debt  of  another 


under  tlie  seventeenth  section  it  has  been 
held  that  the  consideration  need  not  be 
expressed.  But  these  statements  are  most 
inaccurate.  The  authority  upon  which 
they  both  rely  for  these  inaccurate  state- 
ments is  that  of  Egerton  v.  Mathews, 
6  East,  307.  And  it  is  also  so  stated  in 
Bennett's  note  to  Benjamin  on  Sales.  See 
4th  Am.  ed.,  p.  243,  note  u,  where  in  the 
margin  it  is  said  :  "  Doctrine  that  consid- 
eration must  appear  not  extended  to  §  17," 
where  no  authority  for  the  statement  is 
cited.  But  in  Egerton  v.  Mathews  it  ex- 
pressly a[)peared  that  there  was  a  consid- 
eration stated  with  sufficient  clearness,  the 
note  or  memorandum  in  writing  showing 
that  the  price  which  the  promisor  was  to 
pay  was  for  Smyrna  cotton  which  he  was 
tn  receive.  The  considei'ation  for  his  prom- 
ise was  as  plainly  stated  as  was  the  promise 
itself.  And  in  the  immense  number  of 
cases  decided  in  England  under  the  17th 
section  (very  many  of  which  we  cite,  post), 
where  the  note  or  memorandum  in  writing 
has  been  held  sufficient,  they  all,  expressly 
or  impliedly,  show  the  consideration  for 
the  signer's  undertaking  ;  and  unless  they 
show  the  whole  contract,  including,  neces- 
sarily, the  consideration,  or  what  the  party 
is  to  receive  for  his  promise,  the  writing  is 
insufficient.  The  apparent  exception  to 
this  is  where  no  ])rice  has  been  mentioned 
in  the  agreement,  contract,  or  bargain, 
when  a  reasonable  price  will  be  implied 
as  well  as  a  part  of  the  contract,  as  in  the 
writing  itself.  But  even  this  is  only  an 
apparent,  and  not  a  real,  exception,  as  a 
l>rice  not  having  been  named,  the  whole 
contract  has  been  set  out.  But  where  a 
price  has  been  agreed  upon,  this,  as  then 
an  essential  part  of  the  contract,  must  ap- 
pear in  the  writing  ;  otherwise  there  is  no 
note  or  memorandum  in  writing  of  the 
agreement,  bargain,  or  contract,  which,  of 
course,  means  of  the  entire  agreement, 
bargain,  or  contract.  See  authorities  on 
these  points  cited  in  subserpient  portions 
of  this  Part. 

In  Saunders  ik  Wakefield,  4  B.  &  Aid. 
595  (which  we  state  in  our  text),  where 
it  was  claimed  that  Wain  v.  Warlters, 
5  East,  10,  had  been  overruled  by  Ex 
parte  Minet,  14  Ves.  190  ;  Ex  parte  Ga.r- 
dom,  15  Ves.  286  ;  Stadt  v.  Lill,  9  East, 
348  ;  Fowle  v.  Freeman,  9  Ves.  351  ;  Cot- 
ton V.  Lee,  cited  in  2  Bro.  Ch.  564,  and 
Egerton  v.  Mathews,  6  East,  307 ;  it  was 
shown  that  in  all  these  cases  the  consider- 
ation sufficiently  appeared  in  the  writing, 
or  by  a  fair  inference  from  it,  signed  by 
the  party  to   be  charged.     The   mistake 

1  4  B.  &  Aid.  595. 


which  is  often  made  is  in  confounding  the 
mutuality  with  the  consideration.  The 
mutuality  can  only  logically  be  shown  by 
the  writing,  as  we  have,  we  think,  made 
clear,  ante,  by  its  actual  execution  or  sign- 
ing by  both  the  parties  to  the  contract. 
But  this  evidently  is  not  required  by  the 
statute,  which  only  requires  the  writing  to 
be  signed  by  the  party  to  be  charged.  But 
in  the  cases  under  the  17th  section  of  the 
statute,  and  under,  at  least,  one  of  the 
clauses  in  the  4th  section,  the  consideration 
for  which,  for  instance,  the  price  is  to  be 
paid,  is  the  subject  of  the  contract  which 
is  to  be  received.  And  if  this  is  not  shown 
in  the  writing,  there  is,  necessarily,  no  note 
or  menioraudum  in  writing  of  the  contract, 
agreement,  or  bargain  at  all.  Thus,  in 
Fowle  V.  Freeman,  9  Ves.  351,  which  was 
under  the  clause  in  the  4th  section  to 
which  we  have  above  referred,  relating  to 
a  contract  or  sale  of  lands,  the  note  or 
memorandum  in  writing  of  the  contract, 
which  was  signed  by  only  the  party  to  be 
charged,  showed  no  mutuality  ;  but  as  it 
showed  a  sufficient  consideration  the  con- 
tract was  sustained.  The  language  there 
was  :  "  I  agree  to  sell  to  Mr.  Fowle  my 
estate,  tithes,  and  manor  at  Chute  Lodge, 
together  with  the  woods,  trees,  and  fix- 
tures (except  Cadley  Cottage)  for  the  sum 
of  £27,000,  upon  tlie  following  conditions," 
naming  them.  This  paper  was  signed  by 
the  defendant,  but  not  by  the  purchaser, 
Mr.  Fowle,  yet  it  was  held  that,  under 
the  4th  section,  the  consideration  suffi- 
ciently appeared  in  the  writing,  although 
the  writing  showed  no  mutuality.  A  for- 
tiori, under  the  principle  of  the  decision 
of  Wain  V.  Warlters,  5  East,  10,  and  Eger- 
ton V.  Mathews.  6  East,  307,  such  a  mem- 
orandum would  show  a  sufficient  consid- 
eration to  satisfy  the  17th  section  of  the 
statute.  It  is,  in  fiict,  in  effect,  the  very 
description  of  a  note  or  memorandum  in 
writing  which  is  usually  signed  to  satisf}' 
the  17tti  section  of  the  statute,  and  which, 
in  effect,  is  required  (not  only  in  Eng- 
land, and  in  the  States  here  which  purport 
to  agree  with  the  English  decisions  on  the 
subject,  but  even,  as  we  shall  see,  po.it,  in 
the  ver}'  States  themselves  which  claim  to 
repudiate  such  decisions)  to  be  signed  by 
the  party  to  be  charged,  in  order  to  satisfy 
the  requirements  of  the  17th  section  of  the 
statute. 

Another  thing  which  has  led  to  much 
confusion  in  the  matter  has  been  the 
failure  to  notice  the  distinction  between 
the  different  clauses  of  the  4th  section  it- 
self.    Thus,  under  the  clause  of  the  4th 

2  5  En  St,  10. 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM    IN   WRITING. 


517 


simply  was  :  "  Mr.  Wakefield  will  engage  to  pay  the  bill  drawn  by 
Pitman,  in  favor  of  Stephen  Saunders."  Here,  clearly,  is  no  con- 
sideration shown,  nor  is  it  a  note  or  memorandum  of  a  contract, 
bargain,  or  agreement,  at  all.  Abbott,  C.  J.,  well  dealt  with  the 
subject ;  and,  in  effect,  on  one  of  the  grounds  taken  by  us  in  the 
next  preceding  note ;  and  also  directed  attention  to  the  important 
fact  that  the  words  of  the  fourth  section,  special  promise,  agree- 
ment, contract,  sale,  some  of  which  have  been  relied  on  to  show 
that  the  statement  in  the  writing  of  a  consideration  is  not  neces- 
sary under  the  statute,  are  all  words  which  imply  the  necessity  of 
the  consideration  being  shown,  without  which  a  special  promise, 
agreement,  contract,  or  sale  is  simply  nudum  pactum,  or  can  have 
no  existence.^ 


section  relating  to  the  sale  of  lands,  like, 
as  we  have  shown  above,  under  the  17th 
section,  as  illustrated  by  Fowle  v.  Free- 
man, 9  Ves.  351,  and  Egerton  v.  Mathews, 
6  East,  307,  a  writing  signed,  "  I  agree  to 
sell  my  estate  (specifying  it)  for  £27,000  ;  " 
or  "We  agree  to  give  Mr.  Egerton  19fZ. 
per  pound  for  30  bales  of  Smyrna  cotton," 
clearly  shows  in  each  of  these  cases  a  con- 
sideration, but  in  neither  of  them  the  mu- 
tuality, which,  as  we  have  shown,  can  be 
proved  dehors  the  writing.  But  in  Wain  v. 
Warlters,  5  East,  10,  where  the  writing  was 
"I  will  engage  to  pay  you  £56  and  expenses, 
on  bill  that  amount  on  Hall,"  and  in  anal- 
ogous cases,  there  is  neither  mutuality  nor 
consideration  shown.  The  existence  of 
the  debt  is  no  consideration  for  the  mere 
promise  of  a  third  party.  To  make  a  con- 
sideration as  to  him  is  entirely  different 
from  where  he  is  buying  land  under  the 
4th  section  or  goods  under  the  17th.  In 
these  latter  cases  the  land  or  goods  he  is 
expressly  or  impliedly  to  receive  is  the 
consideration  for  the  price  he  is  expressly 
or  impliedly  to  pay.  But  in  the  case  of 
the  promise  of  a  third  party  to  pay  the 
debt  of  another,  as  in  Wain  v.  Warlters, 
the  only  implication  that  arises  from  such 
promise  is  tliat  the  promisee  is  to  receive 
such  debt  (which  is  no  consideration  to 
the  promisor),  not  that  he  is  to  give  time 
or  forbear  to  sue,  or  do  anything  else  that 
would  be  a  consideration,  even  supposing 
there  was  no  question  of  a  writing  in  the 
matter  at  all.  Hence,  as  at  common  law, 
the  mere  promise  of  a  party  to  pay  the 
debt  of  another  i.s  nudum  pactum  for  want 
of  a  consideration  (see  Cook  v.  VV^right,  1 
B.  &  S.  559  ;  .Sowerby  i;.  Butcher,  2  (Jr. 
&  M.  368;  Edwards  v.  Baugh,  11  M.  &  W. 
641  ;  Cooper  v.  Parker,  15  C.  B.  822  ; 
Longridge  v,  Dorville,  5  B.  &  Aid.  117; 
Atlee  V.  Backhouse,  3  M.  &  W.  633  ;  Ma- 
ples V.  Sydney,  Cro.  .lac.  683  ;  Semjde  v. 
Pink,  1  "Ex.  74  ;    Oldershaw  v.  King,   2 


H.  &  N.  517;  Fish  v.  Richardson,  Cro. 
Jac.  47  ;  Pitt  v.  Bridgwater,  Hard.  74) ; 
the  mere  promise  in  writing,  signed  by 
the  party  to  be  charged,  to  pay  the  debt 
of  another,  shows  no  consideration,  and  is 
in  itself  nudum  pactum,  and  is  no  note 
or  memorandum  of  a  bargain,  contract,  or 
agreement  to  satisfy  the  statute.  Obvious- 
ly, as  regards  the  necessity  for  the  consider- 
ation of  the  contract  to  be  shown  by  the 
writing,  to  satisfy  the  statute,  it  is  as  much 
required  under  the  17th  section  of  the  stat- 
ute as  under  the  4th.  The  statements 
which  we  have  quoted  to  the  contrary  are  as 
singularly  remarkable  as  they  are  incorrect. 
See  Ide  &  Smith  v.  Stanton,  15  Vt.  685, 
691,  where  the  oj)posite  error  of  that  which 
we  have  been  considering  in  this  note  is 
committed  by  the  Supreme  Court  of  Ver- 
mont. It  is  there  held  that,  under  the 
17th  section,  all  the  essential  elements  of 
the  contract,  including,  of  course,  the  con- 
sideration, without  which  the  undertaking 
is  a  mere  nude  pact,  must  be  shown  in  the 
writing  under  the  term  "  bargain  "  in  the 
section,  but  that  the  consideration  need 
not  be  shown  under  the  certainly  not  less 
technical  term  "agreement"  of  the  4th 
section.  The  court  say  :  "  Since  a  stipu- 
lated price  is  to  enter  into  the  legal  con- 
templation of  a  bargain,  we  could  not 
doubt,  even  in  the  absence  of  more  direct 
authority,  that  when  the  statute  came  to 
require  written  evidence  of  tlie  bargain  it 
intended  that  the  price  [which  is  the  con- 
sideration for  the  goods,  wares,  or  mer- 
chandise purchased],  like  other  essential 
terms  of  the  contract,  should  be  proved  by 
such  evidence.  This  conclusion,  however, 
is  not  left  to  rest  upon  mere  inference  from 
the  statute,  since  it  is  abundantly  conlirmed 
by  the  decisions  botli  at  law  and  in  e(|uity." 
See  infra,  where  the  Vermont  case  is  fully 
examined,  and  its  fallacy  exposed. 

^  In  doing  so  Abbott,  f!.  J.,  sa3's  :   "I 
assent  to  the  argument  which   has   been 


618  COMMENTARIES   ON   SALES.  [BOOK  IV. 

Wc  have  already  pointed  out  that  there  is  uo  opposition,  in 
fact,  between  the  holding  in  Wain  v.  Warlters  ^  and  Egerton  v. 
Mathews,^  the  former  showing  no  consideration  at  all,  and  the  lat- 
ter showing  that  the  price  the  defendants  were  to  pay  the  plaintiff 
was  for  the  cotton  which  they  were  to  receive  from  him.  Thus, 
although  the  memorandum  or  note  in  writing,  not  having  been 
executed,  as  it  is  not  required  to  be  by  the  statute,  by  both  the 
parties  to  the  contract,  but  only  by  the  party  or  parties  to  be 
charged,  did  not  show  the  mutuality  necessary  to  make  the  con- 
tract binding  on  both  ;  yet  mutuality  must  not,  as,  we  think,  we 
have  abundantly  made  appear,  be  confounded  with  the  essentially 
different  thing,  the  consideration  for  the  signer's  promise  ;  which, 
if  not  shown,  then  —  outside  of  the  question  of  mutuality  alto- 
gether, which  really  and  logically  can  only  be  shown  by  the  writ- 
ing, by  its  actually  being  signed  by  both,  which  the  statute  does 
not  require  —  clearly,  merely  an  unsupported  promise  is  shown, 
and  there  is  no  note  or  memorandum  in  writing  of  any  contract, 
bargain,  or  agreement  at  all.  The  inference  from  the  signed  writ- 
ing in  Egerton  v.  Mathews,  is,  that  the  price  the  defendants  prom- 
ise to  pay  the  plaintiff  was  for  the  thirty  bales  of  Smyrna  cotton 
which  they  were  to  receive  from  him,  and  the  court  held  expressly 
that  this  satisfied  the  requirements  of  the  statute  to  show  "  the 
bargain  "  between  the  parties.  Unless  by  fair  inference  from  the 
writing  the  whole  bargain  appeared,  namely,  what  the  signer  was 
to  do  and  for  what  he  was  to  do  it,  then  there  was  no  bargain 
shown.  But  if  both  of  those  things  were  shown,  then  a  bargain 
was  shown  ;  both  sides  of  it,  namely,  that  the  price  the  defendants 

pressed  upon  us  that  the  word  '  agreement '  tor  to  answer  damages  out  of  his  own  es- 
in  the  latter  part  of  the  4th  section  of  the  tate  would  be  void  if  made  without  con- 
statute  of  frauds  is  to  be  construed  to  be  sideration.  It  is  impossible  to  suppose 
a  word  of  reference,  and  that  it  refers  to  that  the  statute  of  frauds,  which  was  in- 
words  contained  in  the  former  part  of  the  tended  to  correct  the  common  law,  can 
section.  Now,  in  the  former  part  of  the  apply  to  cases  in  which,  at  common  law, 
section,  we  find  the  words  special  promise,  when  the  promise  was  not  in  writing, 
agreement,  contract,  or  sale.  I  read,  there-  there  was  previously  no  remedy.  Now, 
fore,  the  latter  part  of  the  clause  as  if  all  at  common  law,  no  action  would  lie  un- 
those  precedent  words  were  incorporated  in  less  there  was  some  specialty  or  ])eculiarity  ' 
it,  together  with  the  word  agreement,  and  in  the  promise.  It  is  impossible  to  con- 
then  it  would  stand  thus  :  '  unless  the  ceive  how  there  can  be  such  specialty  un- 
agreeraent,  special  promise,  contract,  or  less  the  consideration  for  the  promise  be 
sale  upon  which  such  action  shall  be  stated.  For  it  is  the  consideration  which 
brought,  or  some  memorandum  or  note  makes  it  a  special  promise.  The  consid- 
thereof,  shall  be  in  writing,  and  signed,'  eration,  therefore,  must  have  been  in  the 
etc.  It  is  then  to  be  considered,  with  ref-  contemplation  of  the  legislature  when  they 
erence  to  the  common  law,  whether  there  used  the  words  s[)ecial  promise.  If  so,  it 
can  be  an  agreeraent,  special  promise,  con-  will  follow  that  a  party  is  not  entitled  to 
tract,  or  sale  which  would  be  valid  in  law  recover  unless  the  written  agreement  con- 
nnless  a  consideration  appeared  for  it.  tain  some  s)iecialtv,  which  cannot  be  un- 
Now,  at  common  law,  a  promise  to  pay  le.ss  it  contain  the  consideration  for  the 
the  debt  of  another,  if  made  simply,  and  promise." 
without  a  goo'i  consideration  for  it,  would  i  5  East,  10. 
be  void.     So  also  a  promise  by  an  execu-          2  q  ^^st,  307. 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM   IN   WRITING.  519 

promised  to  pay  was  the  consideration  for  the  goods  he  was  to  re- 
ceive, and  the  goods  he  was  to  receive  were  the  consideration  for  the 
price  which  he  agreed  to  pay.  Thus  Lord  Ellenhorough  in  his  ob- 
servations shows  that  the  bargain,  the  whole  bargain,  both  sides  of 
the  bargain,  and,  therefore,  the  mutual  considerations  to  constitute 
the  bargain,  were  shown  by  a  writing  expressing  that  A.  was  to  pay 
B.,  Wd.  per  pound /or  (one  for  the  other  — the  mutual  considera- 
tions) thirty  bales  of  Smyrna  cotton  (mutual  considerations,  clearly, 
here  !  ).  Thus,  Lord  EUenborough  observed,  the  italics  being  his 
own,  —  "  That  the  words  of  tlie  statute  were  satisfied,  if  there  were 
'  some  note  or  memorandum  of  the  bargain,  signed  by  the  parties 
to  be  charged  by  such  contract.''  And  this  was  a  memorandum  of 
tli.e  bargain,  or  at  least,  of  so  much  of  it  as  was  sufficient  to  bind 
the  parties  to  be  charged  therewith,  and  whose  signatures  to  it  is  all 
that  the  statute  requires."  ^  That  is,  the  whole  bargain  is  shown, 
outside  of  the  consent  of  the  other  party  to  it,  or  the  mutuality, 
which  the  statute  does  not  require  to  be  shown  by  the  writing. 
But,  outside  of  that,  the  bargain,  the  whole  bargain  is  shown ;  that 
is,  what  the  defendants  were  to  give /or  what  they  were  to  receive, 
the  one  being  a  "  consideration "  for  the  other ;  the  price  to  be 
paid,  the  consideration  for  the  goods  to  be  received ;  the  goods  to 
be  received,  the  consideration  for  the  price  to  be  paid. 

We  dwell  on  this,  because  we  think  (1)  that  it  is  conclusive ; 
and  (2)  if  so,  then  we  think,  on  principle,  it  disposes  of  all  the 
cases  in  Connecticut,  Maine,  Massachusetts,  Missouri,  North  Caro- 
lina, Ohio,  or  elsewhere,  where  it  has  been  held  that  under  such 
sections  as  those  of  the  fourth  or  seventeenth  sections  of  the  Eng- 
lish Statute  of  Frauds,  the  consideration  for  the  promise  of  the 
party  to  be  charged  does  not  have  to  be  shown  in  the  note  or 
memorandum  in  writing  of  the  contract,  bargain,  or  agreement, 
required,  respectively,  by  these  sections  of  the  statute,  to  be 
signed  by  him.     Because,  we  think,  that,  in  none  of  the  decisions 

1  Tt  seems  to  lis  clear  that  Lord  Ellen-  court  that  it  would  not  also  have  been 
borough  in  Egerton  v.  Mathews,  6  East,  good  under  the  4th  section.  And  the  lan- 
307,  made  two  mistakes:  the  first  in  grant-  guage  of  Lord  EUenborough  in  the  judg- 
ing a  nonsuit  wlieie  the  requirements  of  ment,  making  the  rule  absolute,  shows, 
the  statute  were  fully  met,  and  a  note  or  we  think,  that  outside  of  i\w  question  of 
memorandum  in  writing  of  the  sale,  bar-  mutuality  being,  under  the  term  "  agree- 
gain,  contract,  or  agreement,  signed  by  the  ment,"  necessary  to  be  shown  by  tlie  writ- 
parties  to  be  charged  by  such  contract,  was  ing,  under  the  4th  section,  wluidi  ich^a,  we 
in  evidence  ;  tl)e  second  where,  in  grant-  think,  seemed  to  embarrass  liiui,  that  he 
ing  a  rule  wis?,  he  assumed  that  there  was  considered  the  note  or  niemoraiKhim  in 
any  distinction  as  to  the  note  or  memoran-  writing  as  sufficient  under  the  one  section 
duni  in  writing  required  under  the  differ-  as  the  other.  His  language  clearly  indi- 
ciit  .sections.  It  will  be  noticed  that,  on  cates  as  much.  And,  in  fact,  in  P^gerton 
the  argument  of  the  rule,  the  court  were  v.  Matiiews,  6  East,  307,  aside  of  tlie 
of  o])inion  that  the  action  was  sustainable  memorandum  not  liaving  been  signed  by 
iinder  the  17th  section  of  the  statute,  the  other  party  to  the  contract,  it  sliowed 
iiotiiing  there    being    intimated    by   the  the  entire  contract. 


520  COMMENTARIES   ON   SALES.  [BOOK   IV, 

in  any  of  these  States  or  elsewhere,  is  it  for  a  moment  so  absurdly 
contended,  that,  in  a  contract  for  the  purchase  of  goods  for  a 
specified  price,  within  the  clause  of  the  seventeenth  section  of  the 
statute  we  are  considering,  a  note  or  memorandum  in  writing 
which  omits  on  the  one  hand  to  state  what  is  the  subject  of  the 
purcliase,  or,  on  the  other  hand,  what  is  to  be  paid  for  it,  would 
be  a  note  or  memorandum  of  the  contract,  bargain,  or  agreement 
to  satisfy  the  statute.  Such  a  memorandum  would  simply  show 
nothing.  Then,  is  not  that  which  is  to  be  got,  as  in  Egerton  v. 
Mathews,  the  consideration  for  that  which  is  to  be  given ;  the 
goods  for  the  price,  the  price  for  the  goods  ?  And  then,  semble, 
as  the  price  to  be  paid  is  the  consideration  for  the  goods  to  be  re- 
ceived ;  of  course,  if  the  price  specified  has  to  be  shown,  the  con- 
sideration, of  necessity,  is  and  must  be  shown.  Where  there  is 
no  price  stated,  then  a  reasonable  price  is  presumed,  and  so, 
therefore,  is  the  consideration.  But,  in  either  case,  the  whole 
contract  is  shown,  and,  in  the  exceptional  case,  the  consideration 
is  implied. 1 

We  have  already  fully  pointed  out  that  under  one  of  the  clauses 
in  the  fourth  section  of  the  act,  that  relating  to  the  sale  of  lands, 
the  consideration,  the  price  to  be  paid  for  the  lands,  is  shown  in 
the  note  or  memorandum  in  writing,  in  the  same  manner  as  it  usu- 
ally is  under  the  seventeenth  section  ;  and  the  statement  of  the 
price,  simply,  in  either  of  these  cases,  to  be  paid  for  specific  lands 
or  specific  goods,  shows,  reciprocally,  the  consideration  between 
the  parties,  or  the  whole  contract,  bargain,  or  agreement.  And, 
although,  as  we  have  shown,  it  is  stated  in  Smith's  Leading  Cases, 
in  England,  and  in  Parsons  on  Contracts,  in  this  country,  and  in 
the  American  Notes  to  Benjamin  on  Sales,  as  their  unsound  de- 
duction from  Wain  v.  Warlters,^  and  Egerton  v.  Mathews,^  that 
while  a  consideration  is  necessary  to  appear  in  the  writing  as  to 
contracts  or  agreements,  under  the  fourth  section,  it  is  not  neces- 
sary that  it  should  so  appear  in  the  writing  as  to  agreements,  con- 
tracts, or  bargains,  under  the  seventeenth  section ;  we  have  cor- 
rected this  important  and  very  glaring  error,  and  have  shown 

1  So,  also,  in  the  absence  of  an  express  examine,  infra,  of  Packard  v.  Richardson, 
stipulation,  as  to  the  time  of  payment,  the  17  Mass.  122,  which  holds  that  the  con- 
presumption  of  law  is  that  the  payment  is  sideration,  to  satisfy  the   statute,  is   not 
to  he  in  cash.     Fessenden  v.  Mussey,  11  required  to  be  stated  in  the  note  or  niem- 
Cush.  127.     So,  therefore,  the  implication,  orandum  in  writing  of  the  contract,  bar- 
under  the  holding  in  this  case  is,  that  if  a  gain,  or  agreement,  which  is  required  to 
part  of  the   consideration   is,   as  to   the  be  signed  by  the  party  to  be  charged.     We 
terms  of  payment,  that  time  is  to  be  given,  state  the  case  of  Fessenden  v.  Mussey,  11 
this,  as  a  part  of  the  consideration,  must  Cush.  127,  post,  in  connection  with  Pack- 
be  expressed  in  the  note  or  memorandum  ard  v.  Richardson,  17  Mass.  122. 
in  writing,  or  the  statute  is  not  satisfied.  -  5  East,  10. 
And  this,  note,  is  in  JIassachusetts,  where  3  6  East,  307. 
the  leading  case  is  to  be  found,  which  we 


PART    VIII.]        THE   NOTE   OR   MEMORANDUM    IN   WRITING.  521 

that  it  is  equally  as  necessary  to  express  the  consideration  in  the 
writing  under  the  phraseology  in  the  seventeenth  section  as  under 
that  of  the  fourth  section. 

The  cases,  on  the  other  hand,  which,  in  this  country,  hold  that 
the  statement  of  the  consideration  is  not  necessary  to  be  shown  in 
the  writing,  fall  into  the  opposite  error  of  holding,  in  effect,  that 
the  consideration  must  appear  in  the  writing  under  the  seven- 
teenth section,  but  not  under  some  clauses  of  the  fourth  section. 
As  intimated  above,  we  know  of  no  case  in  this  country  which 
holds  such  an  absurdity  as  that  a  contract,  agreement,  or  bargain 
is  sufficiently  shown  in  a  writing  by  stating  that  a  price  is  to 
be  paid,  without  stating  the  consideration  for  which  it  is  to  be 
paid,  namely,  the  specific  goods,  wares,  or  merchandises  which  are 
the  subject  of  the  contract,  and  which  are  to  be  received  for  (or 
in  consideration  of)  the  price  vsdiich  is  to  be  paid  for  them.  So, 
therefore,  the  statement,  as  in  Egerton  v.  Mathcwji,^  in  a  signed 
writing,  "  I  agree  to  give  B.  19cZ.  per  pound,  for  thirty  bales  of 
Smyrna  cotton,"  shows,  outside  of  the  mutuality,  the  whole  con- 
tract, i.  e.,  that  the  goods  are  purchased  for  the  price  to  be  paid ; 
what  the  signer  is  to  do,  and  for  what  (the  consideration)  he  is  to 
do  it.  But  under  one  of  the  clauses  of  the  fourth  section,  such  as 
that  of  a  promise  of  one  to  pay  the  debt  of  anotlier,  as  in  Wain  v. 
W^arlters,2  "I,  A.,  agree  to  pay  B.,  C.'s  debt;"  there  no  contract 
is  shown  at  all.  It  is  simply  shown  that  there  is  an  unsupported 
promise  ;  the  other  part  of  the  contract,  bargain,  or  agi-eemcnt,  to 
forbear  to  sue,  to  give  time,  etc.,  neither  appearing  expressly  or 
inferentially,  and  therefore  the  promise  is  simply  nudum  imctum. 
"  I,  A.,  agree  to  pay  B.,  19o?.  per  pound  for  thirty  bales  of  cotton," 
is  one  thing ;  shows  the  whole  contract,  and  satisfies  the  statute. 
"  I,  A.,  agree  to  pay  B.,  C.'s  debt,"  is  quite  another  ;  shows  no  con- 
tract or  agreement,  and,  therefore,  such  a  statement  is  no  note  or 
memorandum  in  writing  of  any  agreement,  bargain,  or  contract. 

It  is  the  failure  to  notice  this  distinction  that  has  led  to  the 
error  in  those  courts  which  have  thus,  in  effect,  held,  as  indeed 
has,  as  we  have  shown,  been  expressly  held  in  Vermont,  that  un- 
der the  seventeenth  section,  the  consideration,  the  whole  contract, 
must  be  shown  ;  while,  under,  at  least,  some  of  the  clauses  of  the 
fourth  section  (for,  surely,  they  cannot  so  hold  with  reference  to 
the  clause  as  to  contracts  or  sales  of  land,  any  more  than  they 
can  as  to  contracts  of  sale  under  the  seventeenth  section),  the 
mere  naked,  unsupported  promise  is  necessary  to  be  shown,  with- 
out sliowing  the  bargain,  contract,  or  agreement  at  all.^ 

1  6  East,  307.  '  Browne,    on   tho  Stntuto   of   Frauds 

2  5  East,  10.  (see  sees.  381,  381a,  et  scq. ),  with  le.s,s  than 


522 


COMMENTARIES    ON   SALES. 


[book  17. 


Whatever  idea  Lord  EUenborough   may   have  entertahied  in 
Wain  V.  Warlters/  and  Egerton  v.  Mathews,^  as  to  any  distinc- 


his  usual  clearness,  evidently  having  some 
idea  of  the  absurd  contradiction  in  which 
the  courts  of  those  States  are  involved, 
tliat  hold  that  merely  the  naked,  unsup- 
ported promise  of  the  party  signing  the 
note  or  memorandum  in  writing  is  good 
to  satisfy  the  reqairements  of  the  statute, 
at  least  as  to  some  of  the  clauses  in  the 
4th  section  ;  but  that  as  to  "  bargains  " 
under  the  17th  section,  the  note  or  mem- 
oraudiira  must  express  the  entire  contract, 
and,  therefore,  of  course,  the  considera- 
tion, saw  no  means  of  escape  from  the 
difficulty  except  by  assuming  that  the 
price  and  the  consideration  are  essentially 
different  things.  As  we  have  shown  above, 
the  price  to  be  paid  is  to  be  paid  for  the 
goods  to  be  received,  and,  therefore,  a  note 
in  writing  showing  this,  and  showing  by 
and  to  whom  the  price  is  to  be  paid,  and 
from  and  to  whom  the  goods  are  to  be  re- 
ceived, shows  the  entire  contract,  except 
the  mutuality,  which  latter,  the  statute 
does  not  require  to  be  shown  by  the  writ- 
ing. The  price  is  to  be  paid  for,  or  in 
consideration  of  the  goods  to  be  received  ; 
the  goods  are  to  be  delivered  for,  or  in 
consideration  of  the  price  to  be  paid. 
Browne,  for  his  untenable  distinction,  re- 
lies on  Saunders  v.  Wakefield,  4  B.  &  Aid. 
601,  and  Egerton  v.  Mathews,  6  East, 
307,  both  of  which  cases  we  have  fully  ex- 
amined, and  neither  of  which  sustains  liis 
position,  as,  in  fact,  he  himself  shows, 
deferring  to  Saunders  v.  Wakefield,  he 
sa3's,  there  ' '  The  action  was  on  a  written 
guaranty  ;  and  the  question  was  whether  it 
was  sufficient  without  having  the  consid- 
eration apparent  on  its  face,  and  the  judges 
concurred  that  it  was  not  ;  but  Mr.  Jus- 
tice Bayley,  in  illustration  of  his  position, 
went  on  to  make  this  remark  :  '  I  find, 
too,  that  the  word  "agreement"  in  this 
clause  is  coupled  with  "  contracts  of  mar- 
riage and  for  the  sale  of  lands  ; "  now,  iu 
those  cases,  it  is  clear  that  the  considera- 
tion must  be  stated.  For  it  would  be  a 
very  insufficient  agreement  to  say:  "I 
agree  to  sell  A.  B.  my  lands,"  without 
specifying  the  terms  or  the  price.'  "  Here, 
Bayley,  J.,  expressly  says,  that  the  consid- 
eration must  be  stated,  which,  in  his  very 
next  words,  he  shows  are  the  terms  and 
the  price.  Thus,  to  take  his  own  case,  ex- 
tended to  meet  his  position  :  "I  agree  to 
sell  A.  B.  my  lands  for  £50,  payable  on 
the  first  of  June  next,"  shows  the  entire 
contract  which  the  statute  requires  ;  meets 
the  view  of  Mr.  Justice  Bayley  and  the 
rest  of  the  court ;  and  is  a  memorandum 


in  accord  with  the  well-decided  cases  on 
the  question.  It  shows  the  considera- 
tion and  the  entire  contract,  except  the 
mutuality. 

The  error  ilr.  Browne  makes  is  in  con- 
founding the  mutuality  with  the  consider- 
ation. Thus,  he  says  :  "  The  statement 
of  the  price  in  the  memorandum  of  a 
contract  of  sale  is  not  always  to  be  regarded 
in  the  same  light  as  the  consideration  of 
the  contract.  When  an  action  is  brought 
upon  a  contract  within  the  statute,  the 
memorandum  must  contain  some  designa- 
tion of  the  parties  contracting,  and  the 
terms  of  the  contract  ;  which  last,  in  the 
case  of  a  contract  of  sale,  ivould  include 
the  price,  if  any  had  been  stipulated. 
[That  is,  the  entire  contract,  except  the 
mutuality.]  It  need  not  contain  or  state 
any  promise  to  perform  or  allegation  of 
performance,  although  such  promise  or 
performance  constitutes  the  only  consider- 
ation for  the  engagement  upon  which  the 
defendant  is  sought  to  be  charged.  In 
Egerton  v.  ilathews,  for  ex;unple,  it  did 
not  appear  in  the  memorandum  whether 
or  not  the  plaintiffs  ever  had  delivered,  or 
agreed  to  deliver,  any  cotton,  [;'.  c,  the 
mutuality  did  not  appear],  yet  delivery, 
or  a  promise  to  deliver,  was  evidently  the 
only  consideration  for  the  defendant's 
promise  to  pay."  And,  proceeding,  Browne 
himself  shows  his  own  incorrectness.  He 
says  :  ' '  The  decision  of  Egerton  v.  Math- 
ews was  certainly  correct,  because  all  the 
terms  of  the  bargain  were  there  presented  in 
tJie  writing ;  not  because  the  word  '  bar- 
gain' imports  a  consideration  any  less 
than  the  word  '  agreement.'  "  This  is  en- 
tirely correct.  "  All  the  terms  of  tlie  bar- 
gain were  there  presented  in  the  writing," 
exactly  as  Mr.  Browne  states,  —  the  price 
to  be  paid  by  the  buyer  to  the  seller  for 
(the  consideration)  the  goods.  So,  pro- 
ceeding, Browne,  in  the  following,  com- 
mits a  still  more  glaring  error  :  "  On  the 
other  hand,  as  Mr  Justice  Bayley  says  : 
'  It  would  be  a  very  insufficient  agreement 
to  say,  "  I  agree  to  sell  A.  B.  my  lands," 
without  specifying  the  terms  or  the  price,' 
because  the  price,  which  is  an  element  of 
the  sale,  is  not  stated  ;  and  not  because 
a  memorandum  of  an  agreement  to  do  a 
thing,  must  necessarily  show  the  motive 
or  inducement  for  making  it."  Mr. 
Browne  makes  a  further  mistake  here 
in  misunderstanding  the  meaning  of 
"consideration."  Primarily,  consideration 
means  deliberation,  thought ;  and,  there- 
fore,  executing   a   sealed   instrument,    as 


1  5  East,  10. 


6  East,  307. 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM   IN   WRITING. 


52B 


tion  in  the  note  or  memorandum,  whether  as  to  the  consideration 
or  mutuality,  under  the  fourth  and  seventeenth  section  of  the 


so  formal  an  act,  implies  deliberatiou  ; 
thought,  consideration.  But  the  primary 
meaning  of  consideration  in  law  is  now 
very  much  an  obsolete  matter.  Price,  too, 
as  well  as  a  specialty,  implies  considera- 
tion. 

While,  as  "  a  motive  or  inducement "  for 
making  a  contract,  a  promise  is  a  good 
consideration  for  a  promise  ;  as  a  general 
rule,  anything  that  is  a  detriment  to  the 
pronusee,  or  a  beneht  to  the  jiromisor,  is  a 
consideration  for  the  promise.  Hence,  a 
price  to  be  paid  is  a  good  consideration  in 
a  bargain,  contract,  or  agreement  for  goods 
to  be  received.  And  goods  to  be  received 
under  a  contract  is  a  good  consideration 
for  a  price  to  be  paid  for  them.  Hence, 
when,  as  in  Egerton  v.  Mathews,  6  East, 
307,  it  sufficiently  appears,  by  the  note  or 
memorandum  in  writing,  signed  by  the 
party  to  be  chai-ged,  that  goods  are  to  be 
received  for  a  price  which  is  to  be  paid  ; 
there,  clearly,  the  bargain,  contract,  or 
agreement,  including  the  consideration,  is 
wholly  shown,  outside  of  the  mutuality, 
and  satisfies  the  statute.  The  considera- 
tion in  a  contract  is  that  which  is  done  or 
to  be  done,  or  given  or  to  be  given,  by  one, 
for  that  which  is  done  or  to  be  done,  or 
given  or  to  be  given,  by  the  other.  Hence, 
to  show  the  consideration,  the  whole  con- 
tract must  be  shown.  And  if  the  terms 
or  conditions  are  omitted,  the  whole  con- 
tract, the  whole  consideration,  is  not 
shown.  The  "motive  or  inducement," 
put  by  Mr.  Browne  as  the  consideration, 
is  not  so  at  all.  The  motive  or  induce- 
ment which  leads  to  the  contract,  unless 
crystallized  into  and  made  a  part  of  the 
contract,  does  not  affect  the  contract,  or 
form  any  part  of  the  consideration  for 
the  undertaking  of  one  to  do  or  not  to 
do  with  or  for  another  some  particular 
thing.  Neither,  as  we  have  shown,  is 
the  mutuality  the  consideration.  The 
mutual  assent  —  the  agrjrcgatio  inentium 
—  is  the  union  of  the  minds  of  the  con- 
tracting parties  ;  the  mutuality  showing 
the  intention  of  the  parties,  and  is  abso- 
lutely essential  to  the  formation  of  a  con- 
tract. But  what  the  contract  is,  is  shown 
by  its  terms,  —  all  that  which  is  given 
or  to  be  given,  or  done  or  to  be  done,  by  one, 
being  the  consideration  for  all  that  is  given 
or  to  be  given,  or  done  or  to  be  done,  by 
the  other.  Hence,  the  question  has  often 
arisen,  where  the  consideration  in  a  con- 
tract has  consisted  of  different  things, 
whether  these,  as  the  consideration  for  the 
other  reciprocal  part  of  the  contract,  go  to 
the  very  essence  of  the  contract,  so  as  to 
btand  or  fall  with  the  contract  in  its  en- 


tirety. See  Cutter  v.  Powell,  6  T.  R.  320; 
Morton  v.  Lamb,  7  T.  K.  125  ;  Glazebrook 
V.  Woodrow,  8  T.  R.  366  ;  Chanter  v. 
Leese,  4  M.  &  W.  295  ;  5  M.  &  W.  698  ; 
White  i;.  Beeton,  7  H.  &  N.  42;  Head  r. 
Baldrey,  6  A.  &  E.  459  ;  Stavcrs  v.  Curl- 
ing, 3  Bing.  N.  C.  355  ;  Franklin  v.  Mil- 
ler, 4  A.  &  E.  599  ;  Glahohn  v.  Hays, 
2  M.  &  G.  257  ;  Scott  v.  Parker,  1  Q.  B. 
809  ;  Wilks  v.  Smith,  10  M.  &  W^  355  ; 
Atkinson  v.  Smith,  14  M.  &  W.  695. 

In  Noy's  Maxims,  c.  42,  pi.  87,  9th  ed. 
205,  it  is  said  that,  "In  all  bargains, 
sales,  contracts,  promises,  and  agreements, 
there  must  be  a  quid  pro  quo  ;  "  i.  e. ,  an 
equivalent,  or  consideration  reciprocally 
between  the  parties.  It  will  be  noticed 
that  tliis  very  old  writer  employs  the 
various  terms  which  are  used  in  the  stat- 
ute of  frauds,  —  bargains,  sales,  contracts, 
promises,  and  agreements,  — showing  that, 
equally  with  one  as  with  the  other,  a 
consideration  is  necessary.  Treating  them 
all  as  contracts,  Noy  also  says:  "It  is 
a  general  learning  that  there  must  be 
in  every  contract,  quid  pro  quo,  viz., 
some  valuable  consideration  between  the 
parties,  to  be  paid  or  performed,  either 
presently  or  at  a  day  to  come,  or  else  some 
earnest  to  be  given  presently;  otherwise 
the  contract  is  void  ;  for  ex  nuclo  pacto  non 
oritur  actio."  Noy's  Max.,  "The  Dia- 
logue," pi.  44,  p.  348. 

See  Sievewright  v.  Archibald,  17  Q.  B. 
103,  where  the  consideration  was  shown 
in  the  note  or  memorandum  in  wiiting, 
but  as  the  bought  and  sold  notes  ditfered, 
it  was  held  that  there  was  no  mutuality, 
and,  therefore,  no  sufficient  note  or  mem- 
orandum in  writing  of  the  contract,  bar- 
gain, or  agreement,  signed  by  the  party 
whom  it  was  sought  to  charge.  See 
fuither,  as  to  mutuality.  Gaunt  v.  Hill, 
1  Stark.  10,  per  Lord  Ellenborough  ;  New- 
berry V.  Armstrong,  1  Moo.  &  M.  389  ; 
Knight  V.  Crockford,   1  Esp.  190,  193. 

But,  as  will  be  seen  by  the  remarks 
which  Browne  has  quoted,  Mr.  Justice 
Bayley's  position  in  Saunders  «•.  Wake- 
field, 4  B.  &  Aid.  601,  is  misstated. 
What,  in  effect,  he  says,  is  :  Contracts 
of  maniage  and  for  the  sale  of  land,  clauses 
in  the  4th  section,  require  "that  the  con- 
sideration must  be  stated.  For  [that  is, 
therefore]  it  would  be  a  very  insufficient 
agreement  to  say,  '  I  agree  to  sell  A.  B. 
my  lands,'  witliout  .specifying  the  terms 
or  the  price  ;  "  and,  therefore,  the  terms 
and  the  price,  as  the  consideration,  "must 
be  stated."  This  language  is  used  by 
I'aylcy,  J.,  with  inference  to  the  4th  sec- 
tion, but  his  position  is  equally  applicable 


524 


COMMENTAEIES   ON   SALES. 


[book   IV. 


statute,  it  is  evident  that  he  did  not  maintain  the  distinction, 
which,  as  we  have  shown,  ante,  we  think  he  really  abandoned  in 


to  the  I7th  section.  As  his  judgment  is 
a  valuable  one,  and  entirely  accords  with 
our  view  as  to  the  law  on  the  subject  in- 
volved, we  set  it  out  here  in  full  :  — 

"  The  object  of  this  statute,"  says  Bay- 
ley,  J.,  in  Saunders  v.  Wakefield,  4  B.  & 
Aid.  595,  600,  "  which  was  a  most  useful 
act,  was  to  prevent  frauds  and  perjury, 
and  it  ought  to  be  construed  so  as  most 
effectually  to  accomplish  that  object.  The 
4th  section  contains  several  cases  in  which 
it  is  provided  that  no  action  shall  be 
brought.  One  case  is  of  a  special  promise 
by  an  executor  to  answer  damages  out  of 
his  own  estate  ;  another  of  a  special  prom- 
ise to  answer  for  the  debt,  default,  or  mis- 
carriage of  another  person.  Now,  at  com- 
mon law,  in  order  to  make  a  person 
chargeable  in  such  cases,  there  must  be  a 
special  consideration  for  the  promise,  either 
moving  to  the  party  promising,  or  from 
the  \)iiviy  in  whose  favor  the  promise  is 
made.  Then  the  statute  provides  that  a 
pai'ty  shall  not  maintain  an  action  in  such 
cases,  unless  the  agreement  upon  which 
such  action  shall  be  brought,  or  some 
memorandum  or  note  thereof,  shall  be  in 
writing  ;  and  I  think,  therefore,  that  that 
memorandum  must  include  a  statement  of 
the  consideration  for  such  agi'eement.  A 
contrary  decision  would  be  most  mischiev- 
ous. For  if  we  were  to  hold  that  the  con- 
sideration might  be  omitted  in  the  written 
agreement,  we  should  immediately  let  in 
fraud  and  perjury.  The  consideration 
may  be  either  past  or  future  ;  and  if  the 
written  agreement  contain  only  a  promise 
to  pay,  the  party  who  relies  upon  it  may 
then  introduce  parol  evidence  of  a  consid- 
eration which,  perhaps,  was  never  intended 
by  the  parties,  and  so  a  door  would  be 
open  to  fraud  and  perjury.  Suppose  the 
real  consideration  for  the  special  promise 
is  something  in  future  to  be  done.  If 
that  be  not  reduced  into  writing,  the 
plaintiff  may  state  in  his  declaration  a 
past  consideration,  and  bring  parol  evi- 
dence to  prove  that  fact.  I  find,  too 
[here  notice  now  the  mistake  made  by 
Browne  in  his  "Statute  of  Frauds,"  to 
which  we  have  referred.  The  whole  ar- 
gument of  Bayley,  J.,  is  that  a  considera- 
tion must  be  shown,  and  he  thus  illustrates 
it],  that  the  word  'agreement'  in  this 
clause  is  coupled  with  '  contracts  of  mar- 
riage, and  for  the  sale  of  land  ; '  now  in 
these  cases  it  is  clear  that  THE  cox.sideua- 
TION  must  he  stated.  For  it  would  be  a 
very  insufficient  agreement  to  saj',  '  I  agree 
to  sell  A.  B.  my  lands,'  without  specify- 
ing the  terms  or  the  price  {i.  e.,  which 
are  the  coiisideratmi],  and  if  those  [i.  e., 


the  consideration]  could  be  supplied  by 
parol  evidence,  we  should  let  in  all  the 
mischief  against  which  the  statute  meant 
to  guard,  viz.  of  having  important  parts 
of  the  contract  proved  by  parol  evidence. 
Without,  therefore,  going  beyond  the 
words  to  this  particular  case  [i.  e.,  the 
clause  relating  to  the  promise  to  pay  the 
debt  of  another],  I  think  that  they  im- 
port that  there  must  be  some  specialty  in 
the  transaction,  and  that  they  mean  that 
the  special  promise  should  be  in  writing, 
incorpoi'ating  in  it  its  consideration,  which 
alone  makes  it  binding.  This  seems  to 
me  to  be  the  result  without  any  reference 
to  authorities  on  the  subject.  But  in  ad- 
dition to  this,  we  have  the  unanimous 
opinion  of  this  court  in  the  case  of  Wain 
V.  Warlters,  5  East,  10  ;  a  case  which  was 
well  considered  at  the  time  by  four  most 
able  judges.  Upon  principle  and  author- 
ity, therefore,  I  think  that  we  ought  to 
decide  in  favor  of  the  defendant  ; "  i.  e. 
that  in  an  action  "  upon  any  special 
promise  to  answer  for  the  debt,  default,  or 
miscarriages  of  another  person,"  there  must 
be  some  note  or  memorandum  in  writing 
of  such  "special  promise"  or  agreement, 
"  signed  by  the  party  to  be  charged  there- 
with, or  by  some  person  thereunto  by  him 
lawfully  authorized  ; "  which  writing  must 
show  the  whole  of  the  common-law  "spe- 
cial promise  "  or  agreement,  which  neces- 
sarily includes  its  very  essence,  the  con- 
sideration. In  a  much  earlier  case  than 
Wain  V.  Warlters,  5  East,  10,  viz.,  Pillans 
V.  Mierop,  3  Burr.  1663,  1666  (a.  d.  1765), 
the  view  as  to  the  necessity  of  the  writing 
showing  the  consideration  for  a  special 
promise  to  pay  the  debt  of  another,  was, 
in  effect,  e.xpressed  by  Wilmot,  J.,  where 
he  says  :  "The  mere  promise  to  pay  the 
debt  of  another,  without  any  considera- 
tion at  all,  is  nudum  pactum :  but  the 
least  spark  of  a  consideration  will  be  suffi- 
cient. It  seems  almost  implied  that  there 
must  be  some  consideration  ;  but  if  there 
be  none  at  all,  it  is  nudum  pactum.  The 
statute  must  mean  such  a  special  promise 
as  ivould  have  supported  an  action."  And, 
therefore,  that  the  consideration  for  the 
special  promise  must  appear  by  the  writ- 
ing. And  see  in  Dom.  Proc,  Eann  v. 
Hughes,   7  T.   R.  350,  n. 

It  does  certainly  seem  very  absurd 
that  any  court  could  hold,  as  the  courts 
in  a  number  of  the  States  in  this  country 
have  done,  that  a  simple,  unsupported 
promise  of  A.  to  pay  B.  the  debt  of  C, 
without  showing  tliat  such  a  promise  is 
on  some  consideration  stated  in  the  statu- 
tory writing  required ;  and  yet  that  the 


PART   YIII.]        THE   NOTE   OR   MEMORANDUM   IN   WRITING. 


525 


his  judgment  in  the  latter  of  these  cases.  Thus,  in  Stadt  v.  Lill,i 
which  was  an  action  on  the  case  for  the  breach  of  a  guaranty  for 
the  payment  of  goods  deHvered  by  the  plaintiff  to  a  third  party, 
the  guaranty  was  in  the  following  form :  "  I  guarantee  the  pay- 
ment of  any  goods  which  J.  Stadt  delivers  to  I.  Nichols  ;  "  which 
was  signed  by  the  defendant.  On  the  trial  it  was  objected  that 
the  guarantee  was  void  by  the  fourth  section  of  the  statute,  which 


case,  under  another  clause  of  the  same 
section,  put  by  Bayley,  J.,  of  "  I  agree  to 
sell  A.  B.  my  lands,  without  specifying 
the  terms  or  the  price,"  would  be  simply 
nudum  pactum,  and  void  for  want  of  a 
specitied  consideiation  to  support  such  a 
mere  naked  prondse,  —  not  the  common- 
law  "special  promise."  In  the  same  way 
the  decisions  of  those  courts  are,  of  course, 
equally  absurd  which  hold  that  the  state- 
ment in  writing  of  the  mere  naked,  un- 
supported promise,  under  the  4th  section, 
of  one  to  pay  another  the  debt  of  a  thiid, 
is  good,  if  made  in  writing,  without  any- 
thing furtlier  ;  and  yet  that  the  contract, 
bargain,  or  agreement,  under  the  17th  sec- 
tion, must  have  set  out  in  it  the  names 
of  the  parties,  the  subject-matter  of  the 
purchase  and  sale,  as  well  as  the  price 
and  terms,  —  the  consideration.  And  yet, 
even  still  more  absurd,  while  so  continu- 
ally holding  as  last  above  stated,  with 
reference  to  contracts,  bargains,  or  agree- 
ments, under  the  17th  section,  to  be  nomi- 
nally claiming  to  hold  that  in  no  case, 
either  under  the  4th  or  the  17th  section 
of  the  statute,  is  it  necessary  that  a  state- 
ment in  writing  of  the  consideration  of 
the  contract,  bargain,  or  agreement  should 
appear  ;  and  yet  that,  as  we  will  clearly 
show  directly,  is  exactly  what  they  do. 

It  is  little  wonder  that,  embarrassed 
by  such  contradictions  and  absurdities, 
such  respectable  writers  as  Mr.  Smith  in 
England  and  Professor  Parsons  in  this 
country  should  misunderstand  and  mis- 
take the  English  decisions,  to  the  efi'ect 
that  the  consideration  must  appear  in  the 
writing  where  the  contract  is  under  the 
4th  section,  but  need  not  where  it  is  under 
the  17th,  — a  position  which,  as  we  have 
shown,  is  entirely  untenable.  Or,  on  the 
other  hand,  that  another  equally  respect- 
able writer,  Browne,  on  the  Statute  of 
Frauds  (see  §§  381,  381  a,  et  scq.),  unable 
on  any  possible  principle  to  reconcile  the 
decisions  of  the  courts  in  this  country, 
which  expressly  hold  that,  at  least  under 
some  of  the  clauses  of  the  4th  section,  the 
consideration  need  not  ai)pear  in  tlie  writ- 
ing necessary  under  the  statute  ;  and  yet, 
with  regard  to  "  bargains "  under  "the 
17th  section,  that  the  entire  contract  must 
appear,  —  the  parties  to  the  contract,  its 


subject-matter,  the  price,  and  the  terms  ; 
that  is,  the  entire  contract,  including,  of 
course,  the  consideration,  —  should  be  com- 
pletely at  sea  with  reference  to  what  such 
cases  do  hold.  And,  therefore,  while  ad- 
mitting, as  he  does  (§  381  «).  that  "the  de- 
cision of  Egerton  v.  Mathews,  6  E;ist,  307, 
was  certainly  correct,  because  all  the  terms 
of  the  bargain  were  there  presented  in  the 
writing;"  and  quoting  Bayley,  J.,  who 
shows  unanswerably  that,  under  a  clause 
in  the  4th  section,  which,  in  efi'ect,  on  the 
question,  is  identical  with  the  "bargains" 
provided  for  in  the  17th  section,  where,  as 
Baylej',  J.,  shows,  "it  would  be  a  very  in- 
sufficient agreement  "  if  the  consideration 
did  not  appear  ;  and  yet  Mr.  Browne  seems 
to  think  —  and  he  is  quite  justified  in  do- 
ing so  from  the  absurd  and  contradictory 
decisions  on  the  subject  in  a  number  of 
the  States  in  this  country — that,  although 
it  is  necessary  under  the  decisions  in  such 
States  that  "  all  the  terms  of  the  bargain  " 
should  be  "  presented  in  the  writing,"  in- 
cluding parties,  subject-matter  of  the  pur- 
chase, price,  and  terms,  yet  the  considera- 
tion need  not  be  so  presented  ;  that  is, 
that  the  subject-matter,  which  is  the  con- 
sideration for  the  price,  must  be  set  forth 
in  the  writing  ;  and  that  the  price  and 
terms,  which  are  the  consideration,  in  the 
contract,  bargain,  or  agreeement  for  the 
goods,  wares,  and  merchandises  purcliased 
must  also  be  stated  in  it,  but  that  "the 
consideration "  need  not  be.  And  we 
then  have  the  contradictory,  iriational 
conclusion  that  the. consideration  must  ap- 
pear in  the  writing  ;  but  yet  tlie  consitlera- 
tion  7iecdj  not  appear  in  the  writing.  This 
is  the  logical  result  of  the  holding  in  those 
cases,  and  of  Mr.  Browne's  logical  deduc- 
tion from  them.  The  only  possible  exjila- 
nation  of  such  contradictions  is  that  they 
have  mistaken  the  consideration,  which, 
under  the  language  of  the  statute,  must 
always  appear  in  the  writing  as  an  essen- 
tial part  of  the  bargain,  contract,  or  agree- 
ment ;  for  the  miUuality,  whicli  is  also 
necessary  to  constitute  a  contract,  but 
which  the  statute  does  not  reipiire  should 
be  shown  in  the  writing,  but  may  appear 
dehors  the  writing. 
1  9  East,  348. 


526 


COMMENTARIES   ON   SALES. 


[book   IV. 


avoids  any  promise  to  answer  for  the  debt  of  another  unless  the 
agreement  be  in  writing,  etc.,  and  Wain  v.  Warlters,^  and  Egerton 
V.  Mathews,^  were  relied  on,  as  holding  that  the  word  "agreement" 
included  the  consideration  for  the  promise  as  well  as  the  promise 
itself.  It  was  claimed  that  no  consideration  for  the  promise  was 
stated  in  the  memorandum.  Lord  Ellenborough  held,  in  entire 
consistency  with  the  holding  of  the  court,  including  himself,  in 
Egerton  v.  Mathews,^  that  the  stipulated  delivery  of  the  goods  to 
Nichols  was  a  consideration  appearing  on  the  face  of  the  writing, 
and  when  the  delivery  took  place  the  consideration  attached.  This 
ruling  was  sustained  by  the  whole  court.  So,  it  is  clear,  that  un- 
der Egerton  v.  Mathews,^  decided  under  the  seventeenth  section, 
and  Stadt  v.  Lill,^  decided  under  the  fourth  section,  the  same  con- 
struction is  given  in  England  to  the  two  sections  of  the  statute  as 
to  what  the  note  or  memorandum  in  writing  is  to  contain.  The 
statements  therefore,  in  Smith's  Leading  Cases,  in  Parsons  on 
Contracts,  and  in  the  American  Notes  to  Benjamin  on  Sales,  re- 
ferred to  ante,  in  effect,  that,  under  the  seventeenth  section  the 
consideration  need  not  be  expressed,  are  entirely  inaccurate.  The 
consideration,  on  which  the  promise  was  sustained,  was  even  more 
clearly  and  unmistakingly  expressed  in  Egerton  v.  Mathews,^  un- 
der the  seventeenth  section,  than  it  was  in  Stadt  v.  Li  11,'  under 
the  fourth.^ 


1  5  East,  10. 

2  6  East,  307. 

3  Ibid. 
*  Ibid. 

5  9  East,  348. 

^  6  East,  307. 

'  9  East,  348. 

8  See  also,  in  Phillips  v.  Bateman,  16 
East,  356,  372,  per  Loi-a  Ellenborough, 
where  the  actual  and  consistent  holding 
in  Wain  v.  Warlters,  5  East,  10  ;  Egerton 
V.  Mathews,  6  East,  307;  and  Stadt  v.  Lill, 
9  East,  348,  is  sustained.  For  further  Eng- 
lish cases  on  the  subject,  see  James  v.  Wil- 
liams, 3  N.  &  M.  196  ;  Cole  v.  Dyer,  1  G. 
&  J.  461;  Newbury  v.  Armstrong,  6  Bing. 
201;  Cole  v.  Duffield,  1  J.  B.  Moore,  252; 
Jenkins  v.  Revnolds,  3  Br.  &  B.  21  ;  s.  c. 
6  B.  Moore,  106  ;  Ex  parte  Minett,  14 
Ves.  189  ;  Ex  parte  Gardom,  15  Yes.  286  ; 
Warrington  v.  Furber,  6  Esp.  89  ;  Russell 
V.  Mosely,  3  Br.  &  B.  211  ;  6  B.  Moore, 
521  ;  Clancy  v.  Piggott,  4  N.  &  M.  496  ; 
Buckmyr  v'  Darnall,  2  Ld.  Rayni.  1085  ; 
Jones  V.  Cooper,  Cowp.  227  ;  Matson  v. 
Wharam,  2  T.  R.  80  ;  Sweet  v.  Lee,  3  M. 
&  G.  452;  Raikes  v.  Todd,  8  A.  &  E.  846; 
Haigh  V.  Brooks,  10  A.  &  E.  309,  334; 
Allen  V.  Bennet,  3  Taunt.  169  ;  Martin  v. 
Mitchell,  1  Jac.  &  W.  426  ;  Palmer  v. 
Scott,  1  Russ.  &  M.  391;  Goss  v.  Lord  Nu- 


gent, 5  B.  &  Ad.  58  ;  Morlev  v.  Boothby, 
3  Bing.  107  ;  Bainbridge  j;."Wade,  16  Q. 
B.  89;  Hawes  v.  Armstrong,  1  Bing.  N.  C. 
761  ;  Cole  V.  Dyer,  1  Or.  &  J.  461  ;  Ryde 
V.  Curtis,  8  Dow.  &  Ry.  62  ;  Powers  v. 
Fowler,  4  E.  &  B.  511.  In  Bainbridge  v. 
Wade,  16  Q.  B.  89,  99,  Coleridge,  J.  said  : 
"There  is  no  doubt  as  to  the  general  rule 
which  results  from  putting  together  Wain 
V.  Warlters,  5  East,  10,  and  Stadt  v.  Lill, 
9  East,  348.  There  must  be  an  agreement 
or  a  memorandum  of  one,  to  satisfy  the 
statute  of  frauds  ;  and  the  consideration  is 
a  part  of  the  agreement.  It  must,  there- 
fore, appear  on  the  instrument,  either  in 
express  terms  or  by  implication,  such  as 
to  leave  no  ambiguity.  It  is  not  to  be 
supplied  by  extrinsic  evidence."  But  it 
is  permitted  to  show,  by  parol,  in  what 
sense  the  words  are  used,  to  show  the  situ- 
ation of  the  parties.  Bainbridge  v.  Wade, 
16  Q.  B.  at  p.  97,  per  Lord  Campbell,  C.  J. 

In  Newbery  v.  Armstrong,  1  Moo.  & 
M.  389,  the  following  note  in  writing  was 
signed  by  the  defendant :  — 

"To  Mr.  J.  Newbery,  —  Sir,  I,  the 
undersigned,  do  hereby  agree  to  bind  my- 
self to  be  security  to  you  for  Mr.  John  Cor- 
coran, late  in  the  employ  of  Mr.  Pearson, 
for  whatever  (while  in  your  employ)  you 
may  intrust  him  with,  to  the  amount  of 


i 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM   IN   WRITING.  527 

111  Stead  V.  Dawber,^  which  was  a  case  under  the  seventeenth 
section  of  the  statute,  it  was  held  that,  in  a  written  contract  un- 
der that  section,  to  deliver,  on  a  certain  day,  goods  of  a  fluctuat- 
ing value,  to  be  paid  for  by  bill  at  three  months  ffom  delivery, 
the  time  of  delivery  is  of  the  essence  of  the  contract,  and  any 
agreement  to  substitute  another  day  must  be  in  writing.  It  was 
not  for  a  moment  contended  in  this  case  that  there  was  any  dis- 
tinction as  to  the  necessity  of  the  consideration  appearing  in  the 
note  or  memorandum  of  the  contract  in  writing,  when  the  contract 
was  under  the  seventeenth  section,  any  less  than  wlien  it  was  un- 
der the  fourth  section.  But  it  was,  in  fact,  conceded  all  around, 
that  all  the  essential  parts  of  the  contract  must  appear  in  the  writ- 
ing. And  the  court  held  accordingly,  that  a  contract  within  the 
Statute  of  Frauds,  without  any  distinction  as  to  the  fourth  or  seven- 
teenth sections,  cannot  be  proved  as  to  any  essential  i^art  of  it, 
and,  therefore,  clearly  not  as  to  its  very  essence,  the  consideration, 
by  parol  testimony ;  for  to  allow  such  a  contract  to  be  proved  partly 
by  writing,  and  partly  by  oral  testimony,  would  let  in  all  the  rais- 
chiefs  which  it  was  the  object  of  the  statute  to  exclude. 

So,  also,  under  the  seventeenth  section,  unless  the  whole  condi- 
tions of  the  sale  appear  in  the  writing,  there  is  no  memorandum 
of  the  bargain.  In  Hinde  v.  Whitehouse,^  where  the  auctioneer 
signed  the  name  of  the  purchaser  of  goods  to  the  catalogue  of 

£50,  in  case  of  default  to  make  the  same     the  plaintiff's  doing  so  was  the  considera- 
tion of  the  defendant's  promise  ;  and  if  by 


It  was  contended  for  the  defendant  fair  construction  we  can,  as  it  were,  spell 
that  there  was  no  consideration  for  the  out  from  the  contract  that  it  was  so,  it  is 
defendant's  promise,  unless  it  was  that  enough.  The  doctriud  contained  in  the 
the  plaintiff  was  bound  to  take  Corcoran  cases  referred  to  has  been  carried  to  the 
into  his  service;  that  this  did  not  ap-  extreme  edge  of  the  law."  Precisely  the 
pear  in  the  agreement,  according  to  which  same  doctrine  is  ap])licable  to  Egerton  v. 
he  might  either  be  at  liberty  not  to  do  Mathews,  6  East,  307,  under  the  17th  see- 
so  at  all,  or  he  might  already  have  done  tion.  And  see  Kennaway  v.  Treleaven, 
so  ;  that  there  was  no  'mutuality  in  the  5  M.  &  W.  498  ;  Bastow  v.  Bennett,  3 
wiitten  agreement,  and  that,  consequently,  Camp.  220.  But  where  tlie  declaration 
it  was  not  binding.     Wain  v.   Warlters,  stated  the  future  supjily  of  goods  as  the 

5  Hast,  10  ;  Saunders  v.  Wakefield,  4  B.  consideration,  the  court  held  that  the  con- 

6  Aid.  595,  and  Lees  f.  Whitcomh,  5  Bing.  sideration,  either  in  express  words  or  by 
34,  were  relied  on.  But  the  court  held  necessary  implication,  must  appear  on  the 
that  the  consideration  was  sufficiently  face  of  the  instrument,  and  that  the  fol- 
shown,  and  that  it  was  not  necessary  to  lowing  memorandum,  signed  by  the  de- 
show  mutuality  by  the  writing.  Tindal,  fendant,  was  insufficient  to  show  th(^  con- 
C.  J.,  in  delivering  tlie  judgment,  said:  sideration  alleged  in  the  declaration :  "Mr. 
"I  think  you  lay  down  your  rule  too  Price,- — I  will  see  you  paid  for  £5  or  £10 
largely.  The  written  agreement  must  wortli  of  leather  on  the  (ith  of  December, 
sliow  the  consideration,  but  it  need  not  for  Thomas  Lewis,  shoemaker."  It  woulil 
show  'mutuality.'  If  you  can  by  rea-  seem,  however  from  the  uncertaintj' as  to 
sonable  construction  collect  from  it  the  the  amount,  that  the  consideration  would 
consideration,  it  is  enough.  In  this  case  be  about  as  open  to  inference  as  it  was  in 
it  rather  appears  from  the  words  of  the  Newbery  v.  Armstrong,  1  Moo.  &  M.  389, 
contract,  m'Mitioning  Corcoran  as  lately  in  from  the  reference  simply  to  the  "  late 
the  emi)loy  of  anotlier  iiiast(!r,  that  he  was  employment  "  of  the  third  party, 

not  at  the  time  of  its  date  taken  into  the  i  2  P.  &  D.  447. 

plaintifTs  service.     If  so,  it  is  clear  that  ^  7  Kast,  558,  569. 


528  COMMENTARIES   ON   SALES.  [bOOK   IV. 

sale,  but  not  to  the  conditions  of  sale,  which  were  not  annexed  to 
the  cataloj'-ue,  it  was  held  that  the  memorandum  was  insufficient 
under  the  seventeenth  section.  Lord  EUenborough,  in  delivering 
the  judgment  of  the  court,  said :  "Supposing  the  auctioneer  or 
broker  for  sale  to  be  the  agent  of  both  parties,  the  question  then 
is,  Has  he  made  a  memorandum  of  the  bargain  in  this  case  ? 
and  it  appears  to  me  that  he  has  not.  The  minute  made  on  the 
catalogue  of  sale,  which  is  not  annexed  to  the  conditions  of  sale, 
nor  has  any  internal  reference  thereto  by  context  or  the  like,  is  a 
mere  memorandum  of  the  name  of  a  person,  whom  perhaps  we 
may  intend  to  be  the  purchaser,  and  of  the  quantity  and  price  of 
the  goods,  which  we  may  perhaps  on  the  foot  of  such  memorandum 
also  intend  to  have  been  sold  to  the  person  so  named  in  the  cata- 
logue. But,  in  treating  it  as  such  memorandum  throughout,  we 
must  intend  also  (contrary  to  the  fact)  that  the  goods  were  sold 
for  ready  money,  and  unattended  by  the  circumstances  specified 
in  the  conditions  of  sale.  And  the  conditions  of  sale,  though  as 
unsigned  they  cannot  be  evidence  of  the  bargain  itself,  are  yet 
capable  of  being  given  in  evidence ;  and  accordingly  have  been  so, 
as  a  part  of  the  transaction  between  the  parties,  and  in  order  to 
show  that  it  was  on  those  conditions  that  the  goods  were  sold.  I 
am  of  opinion,  therefore,  that  the  mere  writing  on  the  catalogue, 
not  being  by  any  reference  incorporated  with  the  conditions  of 
sale,  is  not  a  memorandum  of  a  bargain  under  those  conditions 
of  sale." 

Still  more  clearly  does  Kenworthy  v.  Schofield  ^  show  that  to 
satisfy  the  requirements  of  the  seventeenth  section  the  whole  terms 
and  conditions  of  sale,  all  of  which  go  to  make  the  reciprocal  consid- 
erations between  seller  and  purchaser,  must  appear  in  the  note 
or  memorandum  of  the  bargain,  contract,  or  agreement,  signed 
by  the  party  to  be  charged  thereby.  The  facts  here  were  that, 
at  a  sale  of  goods  by  auction,  certain  conditions  of  the  sale 
were  read  before  the  biddings  commenced,  but  were  not  attached 
to  the  catalogue.  An  agent  for  the  defendant  was  the  highest 
bidder  for  a  lot,  and  the  auctioneer  put  down  the  price,  £105,  and 
the  agent's  name,  opposite  that  lot  in  his  catalogue.  It  was  held 
that  the  conditions  of  sale  not  being  annexed  to  the  catalogue,  no 
sufficient  memorandum  of  the  bargain  was  signed  to  satisfy  the 
seventeenth  section.  Bayley's,  J.,  judgment  is  peculiarly  in  point 
as  to  the  equal  necessity  of  the  whole  bargain,  under  the  seven- 
teenth section,  appearing  in  the  signed  note,  including,  of  course, 
all  that  goes  to  make  up  a  bargain,  —  the  mutual  considerations, 
—  as  of  the  whole  agreement  under  the  fourth  section.     He  says : 

1  2  B.  &  C.  945,  947. 


PART   vol.]        THE   NOTE   OR   MEMORANDUM   IN   WRITING.  529 

"  It  has  been  decided  by  many  cases  that  in  sales  of  land  by  auc- 
tion the  auctioneer  is  agent  for  both  the  vendor  and  vendee,  and 
that  such  auctions  are  within  the  Statute  of  Frauds.  Walker  v. 
Constable,^  Emmerson  v.  Heelis,^  White  v.  Procter,^  Kemeys  v. 
Proctor.*  Now,  the  language  of  the  seventeenth  section  of  the 
Statute  of  Frauds  relating  to  sales  of  goods  is  in  substance  the 
same  as  that  of  the  fourth  section  relating  to  sales  of  land,  the 
difference  being  that  the  latter  speaks  of  an  agreement,  the  former 
of  a  hargain.  The  word  '  bargain '  means  the  terms  upon  which 
parties  contract ;  and  it  appears  by  Saunderson  v.  Jackson  ^  that  in 
order  to  satisfy  the  statute  the  signature  must  either  be  to  some 
written  document  containing  in  itself  the  terms  of  the  hargain,  or 
connected  with  some  other  document  which  does.  Then  comes 
Hinde  v.  Whitehouse,^  in  which  Lord  EUenborough,  after  time 
taken  for  consideration,  delivered  it  as  his  opinion  that  an  auc- 
tioneer had  not  satisfied  the  requisitions  of  the  statute  by  signing 
the  name  of  the  purchaser  to  the  catalogue,  that  not  being  con- 
nected with  or  referring  to  the  conditions  of  sale.  In  the  present 
case  nothing  was  said  at  the  time  when  the  lot  was  put  up  as  to 
the  terms  upon  which  the  sale  was  to  proceed.  The  very  mischief 
contemplated  by  the  statute  might  occur  in  such  a  case  as  this. 
There  is  abundant  room  for  fraud  and  perjury  respecting  the  con- 
ditions of  sale.  Inasmuch,  therefore,  as  there  was  not  any  memo- 
randum of  the  terms  of  the  bargain,  signed  by  the  parties  [that 
is,  by  the  parties  to  be  charged],  I  think  that  the  case  is  within 
the  29  Car.  2,  c.  3,  §  17,  and  that  a  nonsuit  must  be  entered." 
And  Holroyd,  J.  :  "I  tliink  that  there  has  not  been  a  signature 
to  a  memorandum  of  the  bargain  sufficient  to  satisfy  the  seven- 
teenth section  of  the  act.  It  appears  to  me  that  you  cannot  call 
that  a  memorandum  of  a  bargain  which  does  not  contain  the  terms 

ofitr-' 

1  1  B.  &  p.  306.  held  by  the  court,  Lord  Eldon  delivering 

2  2  Taunt.  38.  the  judgment,  that  a  letter  signed  by  the 
^  4  Taunt.  209.  defendants  could  be  connected  with  a  bill 
*  3  Ves.  &  B.  57.  of  parcels  delivered  by  them  to  the  plaiu- 
^  2  B.  &  P.  238.  tiffs  showing  all  the  terms  of  tiie  con- 
®  7  Ea.st,  558.  tract,  and  that  this  satisfied  the  17th 
'  Where  tiie  purchasers  of  flour  wrote     section  of  the  statute.     The  cases  are  very 

a  note  to  the  sellers  specifying  the  rpian-  numerous  where  it  has  been  held,  either 

tity,  quality,  and  price  of  the  flour,  and  directly  or  incidentally,  that  the  note  or 

the  sellers  answered   the   note,   disputing  memoi-andura    in   writing,    to   satisfy  the 

none  of  the  terms  of  it,  nor  mentioning  17th  section   of   the  statute,   must   show 

any  other  terms,  but  asserting  a  part  per-  all  the  terms  of  the  bargain,  contract,  or 

formance,  it  was  held  that  ttiese  papers,  agreement,  and  hence  must  show  ail  that 

taken  together,  contained  a  sufficient  note  goes  to  make  up  the   mutual  considera- 

or  memorandum  of  the  contract,  .signed  tion  of  the  parties  to  the  contract.      In 

by  the  parties  to  be  charged  (the  sellers),  Schneider  v.  Norri.s,  2  'M.  &  S.  286,  280, 

to  satisfy  the  17th  section  of  the  statute.  Bayley,    J.,    said:     "Tiie    object    of    the 

Jackson  v.  Lowe,  1  Bing.  9.     So,  in  Saun-  statute  was  to  protect  parties  from  being 

derson  v.  Jack.son,  2  B.  &  P.  238,  it  was  bound  by  contracts,   unless  it  could   be 
VOL.  II.                                                   34 


530 


COMMENTARIES   ON   SALES. 


[book  IV. 


The  conclusions  of  law  which  we  deduce  on  the  questions  we 
liave  been  here  investigating  are :  — 


seen  that  the  terms  on  which  they  con- 
tracted were  under  their  signature."  And 
see  Cliampion  v.  Plummer,  1  B.  &  P. 
N.  R.  '252  ;  Hodgson  v.  Le  Bret,  1  Camp. 
233  ;  Phillimore  v.  Barry,  1  Camp.  513  ; 
Cooper  V.  Smith,  15  East,  103  ;  Kent  v. 
Huskinson,  3  B.  &  P.  233  ;  Allen  v.  Ben- 
net,  3  Taunt.  169  ;  Littler  v.  Holland,  3 
T.  R.  590  ;  Harvey  v.  Grabham,  5  A.  & 
E.  61  ;  Stowell  v.  Robinson,  3  Bing.  N.  C. 
928  ;  Greaves  v.  Ashlin,  3  Camp.  426  ; 
Meres  v.  Ansell,  3  Wils.  275  ;  Elmore  v, 
Kingscote,  5  B.  &  C.  583  ;  Haughton  v. 
Morton,  5  Ir.  C.  L.  329 ;  Richards  v. 
Porter,  6  B.  &  C.  437;  Smith  v.  Surmau, 
9  B.  &  C.  561;  Cooper  v.  Smith,  15  East, 
103 ;  Archer  v.  Baynes,  5  Ex.  625. 

But  where  the  terms  of  the  bargain  are 
stated  in  a  note  or  memorandum  in  writ- 
ing, signed  by  the  party  to  be  charged, 
even  though  the  contract  be  repudiated  in 
the  same  writing,  the  statutory  require- 
ments are  satisfied.  In  Blackburn  on 
Sales  (2d  ed.  p.  62),  a  doubt  is  expressed 
whether  such  a  note  or  memorandum 
•would  be  sufficient ;  but  it  has  been  long 
since  expressly  decided  that  it  is  so.  Not- 
withstanding the  high  authority  of  the 
learned  author,  we  see  no  reason  to  ques- 
tion the  correctness  of  the  decision.  The 
question  arose  in  Bailey  v.  Sweeting,  9 
C.  B.  N.  s.  843,  where  the  defendant  in  a 
letter  to  the  plaintiffs  stated  the  terms  of 
the  contract,  but  declined,  under  the  cir- 
cumstances, to  be  bound  by  it.  The  court 
held  that  the  statutory  evidence  was  fur- 
nished by  the  letter.  Williams,  J.,  well 
disposes  of  the  question  thus  :  "It  cannot 
for  a  moment  be  controverted  here,  that  in 
point  of  fact  there  was  a  good  and  lawful 
contract  between  the  plaintiffs  and  the 
defendant  for  the  sale  of  the  goods  in 
question.  But  it  is  equally  clear  that,  as 
the  price  of  the  goods  bargained  for  ex- 
ceeded the  value  of  £10,  the  contract  was 
not  an  actionable  one  unless  the  requisites 
of  the  17th  section  of  the  statute  of  frauds 
were  complied  with.  The  effect  of  that 
enactment  is,  that  although  there  is  a 
contract  which  is  a  good  and  valid  con- 
tract, no  action  can  be  maintained  upon 
it  if  made  by  word  of  mouth  only,  unless 
something  else  has  happened,  e.  g.,  un- 
less there  be  a  note  or  memorandum  in 
writing  of  the  bargain,  signed  by  the  party 
to  be  charged.  As  soon  as  such  a  mem- 
orandum comes  into  existence,  the  con- 
tract becomes  an  actionable  contract.  The 
question,  therefore,  in  the  present  case  is 
whether  such  a  memorandum  has  come 
into  existence.  It  is  plain  to  my  mind 
that  the  terras  of  the  defendant's  letter 


do  constitute  such  a  memorandum  as  the 
statute  contemplated.  It  completely  re- 
cites all  the  essential  terras  of  the  bargain  ; 
and  the  only  question  is  whether  it  is  the 
less  a  note  or  memorandum  of  the  bargain 
because  it  is  accompanied  bj'  a  statement 
that  the  defendant  does  not  consider  him- 
self liable  in  law  for  the  performance  of  it. 
There  is  nothing  in  the  statute  to  warrant 
that.  I  think  the  statute  is  satisfied, 
and  that  the  contract  is  an  actionable  one. 
It  is  said  that  there  may  be  a  difficulty  in 
maintaining  this  doctrine,  in  consequence 
of  the  inconvenience  which  may  arise  from 
the  property  not  passing  by  the  contract 
until  it  has  become  capable  of  being  en- 
forced by  action.  That  may  be  true ;  but 
the  same  may  be  said  as  to  part  accept- 
ance or  the  payment  of  earnest ;  and  yet 
nobody  ever  suggested  a  doubt  that  an 
action  might  be  brought  upon  a  verbal 
contract  where  either  of  these  things  has 
taken  place.  I  entirely  agree  with  my 
lord  in  his  appreciation  of  my  brother 
Blackburn's  book  ;  but  after  fully  con- 
sidering the  proposition  which  has  been 
cited  from  it,  and  the  reasoning  upon 
which  that  proposition  is  based,  I  feel 
bound  to  say  that  I  do  not  consider  it 
satisfactory.  The  right  of  the  defendant 
to  put  an  end  to  the  contract,  if  any  such 
right  existed,  ought  not  to  affect  the  ques- 
tion whether  there  was  a  valid  contract  or 
not.  There  was  a  valid  contract,  and  the 
memoraiidum  was  a  sufficient  memoran- 
dum. The  intention  of  the  defendant  to 
repudiate  or  abandon  the  contract  cannot 
affect  the  question  as  to  the  sufficiency  or 
insufficiency  of  it."  But  in  Rondeau  v. 
Wyatt,  2  H.  Bl.  63,  it  was  held,  that 
where  the  defendant,  in  his  answer  to  a 
bill  in  equity,  admits  the  parol  agreement, 
but  relies  on  the  statute,  there  the  requi- 
sites of  the  statute  are  not  met.  To  have 
held  otherwise,  or  to  hold  that  where,  in 
giving  evidence,  the  party  whom  it  is 
sought  to  charge  has  signed  the  transcript 
of  his  testimony,  and  thereby  has  admitted 
the  contract  so  as  to  satisfy  the  statute, 
would  be  to  encourage  perjury  instead  of 
preventing  it.  See  Whaley  v.  Bagnal,  1 
Br.  P.  Cas.  345. 

And  where  an  invoice  of  goods  has  been 
received  by  the  vendee,  to  which  he  refers 
by  letter,  and  neither  in  the  letter  nor 
invoice  are  all  the  material  terms  of  the 
oral  contract  stated,  there  is  not  here  a 
note  or  memorandum  of  the  bargain  to 
satisfy  the  17th  section  of  the  statute. 
Thus,  in  McLean  v.  NicoU,  7  H.  &  N. 
1024,  a  verbal  purchase  was  made  of 
"plate  glass  of  the  best  quality;"    but 


PART   VIII. J        THE   NOTE   OR   MEMORANDUM   IN   WRITING.  531 

1.  The  terms  "agreement,"  "contract,"  "bargain"  of  the  fourth 
and  seventeenth  sections  of  the  statute  are  in  effect  synonymous ; 
and  a  note  or  memorandum  in  writing  of  such  agreement,  con- 
tract, or  bargain,  under  either  of  these  sections,  is  not  sufficient 
unless  expressly  or  by  fair  inference  all  tlie  terms  of  the  verbal 
contract  between  the  parties  to  it  appear  in  such  writing. 

2.  The  consideration  of  the  agreement,  contract,  or  bargain  be- 
ing that  which  is  given  or  to  be  given,  or  done  or  to  be  done,  by 
one  of  the  parties  to  the  contract,  for  that  which  is  given  or  to  be 
given,  or  done  or  to  be  done,  by  the  other  party  to  the  contract ; 
the  consideration  is,  therefore,  of  the  very  essence  of  the  contract, 
and  must  be  expressly  stated,  or  by  fair  inference  appear  in  the 
written  note  or  memorandum,  whether  under  the  fourth  or  seven- 
teenth section  of  the  statute ;  otherwise  there  is  no  note  or  mem- 
orandum of  the  contract  such  as  is  required  by  these  sections  ; 
the  essential  thing  necessary  to  constitute  an  agreement,  bargain, 
or  contract  at  all  under  these  sections  not  appearing  in  the  writ- 
ing, as  it  must  do  in  order  to  show  what  such  agreement,  bargain, 
or  contract  is. 

3.  As  the  note  or  memorandum  in  writing  of  the  agreement, 
bargain,  or  contract  is  required  by  the  statute  to  be  signed  only 
by  the  party  or  parties  to  be  charged  by  it ;  such  note  or  memo- 
randum in  writing  is  sufficient  if  signed  by  the  party  or  parties 
whom  it  is  sought  to  charge  under  such  contract,  bargain,  or 
agreement,  if  the  parties  thereto  and  all  the  terms  of  the  contract 
appear  in  or  by  such  note  or  memorandum  in  writing,  even  though 
it  be  not  also  signed  by  the  other  party  or  parties  to  such  con- 
tract ;  the  assent  of  such  otlier  party  or  parties  thereto,  or  the 

there  was  no  refereuce  to  this  either  in  of  frauds  has  been  complied  with.     We 

the  invoice  or  in  the  vendee's  letter  ac-  are   first   to   inquire   what   was   the    real 

knowledging  receipt  of  the  invoice.      It  contract,  and   tlien  whether   the   invoice 

was  held  that  the  requisites  of  the  statute  and  answer  together  furnish  a  memoran- 

were  not  met.    Pollock,  C.  B.,  said:  "We  dum  of  what  was  the  real  contract.     We 

all  think  that  the  memorandum  must  con-  cannot  hold  that  it  does,  for  the  reasons 

tain  all  the  terms  of  the  contract.     Now,  I  have  stated.     It  is  to  be  regretted  that 

the  invoice,  taken  with  the  answer,  does  we  should  be  under  the  necessity  of  en- 

not  contain  all  the  terms  of  the  contract,  tering   upon    such    frequent   instances   of 

No   doubt    cases    have   decided    that   an  non-compliance   with   the   statute.      The 

invoice,  responded  to  by  a  signed  letter,  cases  have  gone  very  far  in  putting  the 

may  form  a  memorandum  to  satisfy  the  correspondence   of    parties    together    and 

statute  of  frauds.     But  in  those  cases  it  constituting   a    memorandum    to    satisfy 

was  held  that  the  memorandum  must  con-  the   statute.      But    I    think    we    should 

tain  all  the  terms  of  the  contract ;    and  not   be   always   .searching   for   something 

the  invoice,  taken  with  the  answer,  does  equivalent   to   a   memorandum  ;    and    in 

not  contain  all  the  terms  of  the  contract,  this  ca,se  certainly  we  could  not,  on  any 

according  to  the  evidence  of  the  plaintiff,  principle,  hold  that  any  had  been  shown." 

One  term  of  the  contract,  relating  to  the  But  the   princijile  decided   by   I'.ailoy  i'. 

quality  of  the  glass,  is  not  mentioned  in  Sweeting,  9  C.  H.  n.  s.  84.3,  stated  ante, 

the  invoice  at  all  ;  and  as  the  memoran-  was  approved,  and  that  case  was  affirmed, 

dum  should  contain  all  the  terms  of  the  See   Simmons   v.    The   Southeastern    Ky. 

contract,  we  cannot  hold  that  the  statute  Co.,  7  Jur.  n.  s.  851. 


532  COMMENTARIES   ON   SALES.  [bOOK   IV. 

mutuality  between  the  parties  with  respect  to  the  contract,  bar- 
"■ain,  or  agreement,  being  open  to  be  shown  dehors  the  note  or 
memorandum  in  writing. 

4.  Obviously,  then,  the  mutuality  in  a  contract  is  essentially  a 
different  thing  from  the  consideration  of  a  contract ;  the  former, 
as  we  have  seen,  being  capable  of  being  shown  by  extrinsic  evi- 
dence, while  the  latter  must  appear  in  or  by  the  writing. 

All  these  propositions  are  thoroughly  well  settled  by  the  English 
cases  which  we  have  examined,  and  rest,  we  think,  on  an  entirely 
souud,  logical  basis.  But  many  of  the  decisions  in  this  country 
are  not  at  all  in  accord  with  the  above  stated  propositions ;  but, 
as  we  have  intimated,  ante,  in  a  number  of  the  States  it  has  been 
professed  to  be  held  that  the  consideration  need  not  be  stated  in 
the  note  or  memorandum  in  writing  of  the  contract,  bargain,  or 
agreement,  which,  by  the  statute,  is  required  to  be  signed  by  the 
party  to  be  charged  by  such  contract,  bargain,  or  agreement.  We 
say  advisedly  "  professed  to  be  held,"  because  we  think,  that,  even 
in  the  States  where  the  courts  have  most  strongly  professed  to 
hold  that  the  consideration  need  not  appear  in  the  written  note  or 
memorandum,  in  oj"der  to  satisfy  the  statute,  they  are  most  incon- 
sistent and  contradictory  in  their  holdings  on  the  subject.  We 
think,  further,  that  if,  in  any  of  the  States,  it  were  really  and  per- 
sistently held  that  the  consideration  need  not  appear  in  and  by 
the  writing,  they  would  thereby  virtually  repeal  the  statute.  And 
in  those  States  where  they  have  enacted  a  statute  of  frauds,  and 
then  have  gone  on  to  provide  that  the  consideration  need  not 
appear  in  the  writing ;  it  seems  to  us,  that  they  simply  enact 
that,  on  the  one  hand,  certain  contracts  must  be  evidenced  by  a 
note  or  memorandum  in  writing ;  and  then,  on  the  other  hand, 
further  enact  that  such  contracts  need  not  be  evidenced  in  writing, 
inasmuch  as  the  very  ingredients  without  which  they  are  not  con- 
tracts at  all  need  not  be  shown  by  the  writing. 

We  shall  direct  attention  to  some  of  such  statutes  by  and 
by.  We  shall  now  point  out  what  we  think  are  the  contradictions 
and  absurdities  in  the  cases  of  some  of  those  States  which  profess 
to  hold,  that,  under  the  statute,  the  consideration  need  not  be  stated 
in  the  writing.  The  leading  case  for  the  doctrine  that  the  con- 
sideration need  not  appear  in  or  by  the  note  or  memorandum  in 
writing  is  Packard  v.  Richardson  ;i  the  head-note  of  which  is:  "A 
promise  to  pay  the  debt  of  another  in  writing,  and  signed  by  the 
party  intending  to  be  bound,  is  a  sufficient  compliance  with  the 
Statute  of  Frauds,  without  any  recital  in  the  writing,  of  the  con- 
sideration upon  which  the  promise  is  founded." 

1  17  Mass.  122. 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM   IN    WRITING.  533 

In  this  case,  the  first  mistake  apparent  is,  that  the  Massachu- 
setts statute,  which,  in  effect,  like  that  of  29  Car.  2,  c.  3,  enacts 
that "  No  action  shall  be  brought,  whereby  to  charge  the  defendant 
upon  any  special  promise  [which,  as  we  have  seen,  supra,  imports  a 
consideration,  as  do  contract,  agreement,  bargain,  sale]  to  answer 
for  the  debt,  default,  or  misdoings  of  another  person,  unless  the 
agreement  upon  which  such  action  shall  he  brought,  or  some  mem- 
orandum or  note  thereof,  shall  be  iji  writing,  and  signed  by  the 
party  to  be  charged  therewith,"  etc.,  is,  it  seems  to  us,  deprived  of 
much  of  its  clear  legal  force.  As  no  action  will  lie  upon  an  agree- 
ment, or  special  promise,  which  is  without  consideration  ;  and  as 
the  statute  requires  that  the  agreement  (i.  e.,  the  whole  agree- 
ment upon  which  the  action  shall  be  brought),  or  some  note  or 
memorandum  of  it  (z.  e.,  of  the  whole  agreement  upon  which  the 
action  shall  be  brought^  shall  be  in  writing,  it  seems  to  us  clear 
that  if  the  writing  fail  to  contain  one  of  the  most  essential  parts 
of  the  agreement, — its  very  foundation,  the  consideration,  —  there 
is  no  written  statement  of  the  agreement  upon  which  the  action  is 
brought,  nor  note  or  memorandum  in  writing  of  such  agreement. 

In  Packard  v.  Richardson,^  it  is  claimed  by  Parker,  C.  J.,  that 
the  terms  in  the  statute  mean  nothing  more  than  promise  or  en- 
gagement, and,  therefore,  all  that  is  required  is  a  statement  in  writ- 
ing of  the  promise  or  engagement.  It  might  be  enough  to  say  that 
it  is  not  this  that  the  statute  requires ;  but,  rather,  that  the  agree- 
ment, or  a  note  or  memorandum  of  it,  and  not  of  the  mere  promise 
or  undertaking,  is  what  the  statute  requires  should  be  in  writing. 
But,  as  has  been  pointed  out,  supra,  in  reference  to  the  English 
statute,  so,  in  the  Massachusetts  statute,  in  the  same  section  in 
which  it  is  there  enacted  as  above,  a  similar  enactment  is  made 
in  reference  to  a  contract  for  the  sale  of  lands.  How  then,  as 
has  been  well  asked  by  one  of  the  English  judges,^  would  a  mem- 
orandum of  a  contract  for  the  sale  of  lands  appear,  in  which  there 
was  no  note  of  the  consideration  ?  As  the  consideration  here  is 
simply  what  the  one  party  to  the  contract  is  to  get  for  what  the 
other  party  is  to  give,  the  note  or  memorandum  of  "the  contract" 
which  contained  no  reference  to  the  consideration,  would  be  no 
note  or  memorandum  of  a  contract  at  all.  It  would  be,  on  the 
one  hand,  merely,  "  I,  A.,  agree  to  sell  B.  my  lands,"  without  stat- 
ing either  price  or  terms  ;  or,  on  the  other  liand,  "  I,  B.,  agree  to 
pay  A.  $1000,  in  six  months  with  interest,"  without  stating  for 
what  this  was  to  be  paid,  leaving,  in  either  case,  against  the  letter 
and  spirit  of  the  act,  virtually  everything  that  the  act  requires  to 
be  in  writing  to  be  proved  by  parol. 

117  Mass.  at  p.  130.  2  Bavley,  J.,  in  Saunders  v.  Wakefield, 

4  B.  &  Aid.  595,  601.     See  ante,  p.  522,  n. 


534  COMMENTARIES   ON   SALES.  [BOOK  IV. 

Were  the  same  principle  carried  out,  —  which,  as  we  will  show 
presently,  has  not  been  done  by  either  the  Massachusetts  court 
or  by  those  courts  in  the  other  States  in  this  country  which  have 
professed  to  follow  tlie  principle  of  what  we  think  is  the  utterly 
untenable,  illogical  case  of  Packard  v.  Richardson,^  —  with  cases 
comino-  under  such  a  section  as  the  seventeenth  of  29  Car.  2,  c.  3, 
and  that  section  would  be  absolutely  repealed  ;  notwithstanding 
the  erroneous  statement,  to  which  we  have  previously  referred,  in 
Smith's  Leading  Cases  in  England,  and  in  Parsons  on  Contracts 
and  in  the  American  Notes  to  Benjamin  on  Sales  in  this  country, 
that,  under  the  English  decisions,  the  consideration  for  "  the 
agreement "  had  to  be  stated  in  the  writing  under  the  fourth 
section,  but  that  the  consideration  for  "  the  bargain  "  had  not  to 
be  stated  in  the  writing  under  the  seventeenth  section. 

Parker,  C.  J.,  in  Packard  v.  Richardson,^  quite  correctly  sug- 
gests, as  we  have  shown  ^  is  the  case  unquestionably,  that  there 
is  no  material  distinction  to  be  taken  between  the  term  "  agree- 
ment "  of  the  fourth  section  and  "  bargain  "  of  the  seventeenth.* 
But  while  thus  far  right,  all  his  reasoning  in  connection  therewith 
is  manifestly  unsound.  His  idea  seems  to  be  very  much  as  Lord 
Ellenborough's  first  and  erroneous  impression  in  Egerton  v. 
Mathews  ^  seems  to  have  been  :  that,  to  satisfy  the  fourth  section 
of  the  statute,  according  to  the  holding  in  Wain  v.  Warlters,^ 
not  only  the  consideration  for  the  contract  must  appear  by  the 
writing,  but  that  the  aggregatio  mentium  —  the  mutuality  of  the 
parties  to  the  contract  —  must  also  appear  by  the  writing.'     This, 

1  17  Mass.  122.  with  the  maker  ;  the  considemtion  to  bind 

2  Ibid,  at  p.  131.  the  surety  being  ai)parpnt  on  the  face  of 

3  Ante,  p.  505  et  seq.  the  note,   being  the  credit  given   to  the 
*  See  also,  to  the  same  effect.  Hunt  v.  principal  by  the  promisee  for  the  value  re- 
Adams,   5   Mass.   358,  360,  per  Parsons,  ceived   of  him.     In   Bickford    v.    Gibbs, 
C.  J.  8  Cush.  154,  in  an  action  on  a  guaranty 

^  6  East,  307.  on  a  promissory  note,  it  was  held  that 
8  5  East,  10.  where  the  guaranty  is  made  after  the  note 
■^  In  Packard  v.  Richardson,  17  Mass.  has  been  made,  delivered,  and  received  as 
122,  the  action  was  by  the  indorsee  of  a  a  complete  contract,  the  guaranty  is  then 
promissory  note,  on  an  indorsement  on  the  a  collateral  promise  to  the  note,  and  a  dis- 
note  by  the  defendants,  as  follows:  "We  ac-  tinct  consideration  for  the  guaranty  must  be 
knowledge  ourselves  to  be  holden  as  surety  proved.  But  when  the  guaranty  is  made 
for  the  payment  of  the  within  note."  Had  on  the  note  before  its  delivery  by  the  maker 
this  indorsement  been  made  concurrently  to  the  promisee,  it  must  be  deemed  to  be 
with  the  making  of  the  note,  it  is  clear  done  for  the  benefit  of  the  maker,  to  add  to 
that  no  other  consideration  than  that  which  the  strength  of  the  note  and  to  induce  the 
was  involved  in  the  note  itself  would  have  promisee  to  take  it  and  advance  his  money 
been  necessary.  In  another  case  decided  on  it ;  and  no  other  consideration  is  neces- 
in  the  Massachusetts  court,  Hunt  v.  sary  than  the  credit  thus  given  to  the 
Adams,  5  Mass.  358,  it  was  held.  Parsons,  maker.  See  Benthal  v.  Judkins,  13  Met. 
C.  J.,  delivering  the  judgment,  that  such  265  ;  Robinson  v.  Abell,  17  Ohio,  36  ; 
an  undertaking  was  not  a  collateral  under-  Champion  v.  Griffith,  13  Ohio,  228  ;  Col- 
taking  to  pay  the  debt  of  another,  but  was  burn  v.  Averill,  30  Me.  310  ;  Gillighan  v. 
an  original  undertaking;  the  surety,  in  Boardman,  29  Me.  79;  Simons  r.  Steele, 
effect,  being  a  joint  and  several  promisor  36  N.  H.  73  ;  Draper  v.  Snow,  20  N.  Y. 


PART   VIII.]         THE   NOTE   OR   MEMORANDUM   IN   WRITING. 


635 


next  to  the  error  of  misconstruing  the  word  "  agreement "  in  the 
statute,  is,  we  think,  the  leading  error  in  the  decision  of  Packard  v. 
Richardson,!  Thus  Parker,  C.  J.,  there  says :  " In  the  case  of  Eger- 
ton  V.  Mathews  ^  it  was  decided  that  a  memorandum  containing  only 
one  aide  of  the  bargain,  and  without  any  consideration  expressed, 
was  sufficient.  When  this  case  came  before  Lord  Ellenborough,  at 
nisi  prius,  he  thouglit  it  governed  by  Wain  v.  Warlters  ;  and  it 
is  certainly  difficult  to  perceive   a  difference  between  the  two 


331 ;  Maurow  v.  Durham,  3  Hill,  584  ; 
Higgins  V.  Watson,  1  Mich.  428  ;  Camp- 
bell V.  Kuapp,  15  Pa.  St.  27  ;  Klein  i;. 
Currier,  14  111.  237 ;  Rich  v.  Hathaway, 
18  111.  548.  In  one  sense,  an  indorsement 
of  a  note  or  bill,  or  the  acceptance  of  a 
bill,  is  a  collateral  undertaking  to  pay  the 
debt  of  another,  but  the  consideration  for 
the  note  or  bill  is  sufficient  to  sustain  an 
action  against  the  indorser  or  acceptor, 
notwithstanding  the  statute  of  frauds. 
See  Raborg  v.  Peyton,  2  Wheat.  385.  In 
this  case.  Story,  J.,  said  :  "  An  acceptance 
is  not  a  collateral  engagement  to  pay  the 
debt  of  another.  It  is  an  absolute  en- 
gagement to  pay  the  money  to  the  holder 
of  the  bill ;  and  the  engagements  of  all 
the  other  parties  are  merely  collateral. 
Primd  facie,  every  acceptance  affords  a 
presumption  of  funds  of  the  drawer  in 
the  hands  of  the  acceptor  ;  and  is,  of 
itself,  an  express  appropriation  of  those 
funds  for  the  use  of  the  holder.  The 
case  may,  indeed,  be  otherwise ;  and  then 
the  acceptor,  in  fact,  pays  the  debt  of  the 
drawer ;  but  as  between  himself  and  the 
payee,  it  is  not  a  collateral,  but  an  origi- 
nal and  direct  undertaking.  The  payee 
accepts  the  acceptor  as  his  debtor,  and  he 
cannot  resort  to  the  drawer  but  upon  a 
failure  of  due  payment  of  the  bill.  The 
engagement  of  the  drawer,  therefore,  may 
more  properly  be  termed  collateral.  Yet 
it  has  been  held,  that  debt  will  lie  in 
favor  of  a  payee  against  the  drawer  in  case 
of  non-payment  by  the  acceptor.  Hond's 
Ca.se,  Salic.  23  ;  Hodges  v.  Steward,  Skin. 
346.  And  see  Bishop  v.  Young,  2  B.  & 
P.  78."  So  in  Fisher  v.  Beckwith,  19  Vt. 
31,  34,  the  court  said  :  "  It  is  objected  to 
the  acceptance  that  it  was  an  undertaking 
to  pay  tlie  debt  of  another,  viz.,  the  debt 
of  Woodman  to  the  jilaintitf,  and,  being  by 
parol  and  not  in  writing,  was  void  under 
the  statute  of  frauds-;  that  it  was  given 
without  consideration  ;  and  that  it  was  a 
conditional  or  partial  acceptance,  and, 
therefore,  variant  from  the  dechiration. 
It  is  not  disputed  that,  at  common  law,  a 
■parol  or  oral  acceptance  of  a  bill  may  be 
sufficient  and  biTiding.  Nor  am  I  aware 
that,  in  an  onlinnry  case,  it  was  ever 
held  to  be  a  contract  within  the  statute  of 


frauds.  Most,  if  not  all,  the  reported 
decisions,  adjudging  such  an  acceptance 
good,  have  been  subsequent  to  the  Eng- 
lish statute  of  Frauds.  Erskine  v.  Mur- 
ray, 2  Str.  817  ;  Lumley  v.  Palmer,  2  Str. 
1000;  Sproat  v.  Matthews,  1  T.  R.  182  ; 
and  many  others.  It  is  the  common  pre- 
sumption that  a  bill  of  exchange  in  the 
usual  form  is  drawn  on  account  of  some 
indebtedness  from  the  drawee  to  the 
drawer.  Vere  v.  Lewis,  3  T.  R.  182  ;  Sy- 
mons  V.  Parmenter,  1  Wils.  185  ;  s.  c.  in 
error,  2  Br.  P.  C.  43  ;  Chittenden  v.  Hurl- 
burt,  2  Aikens  (Vt.),  133.  And  in  the 
present  case,  that  presumption  is  confirmed 
by  evidence.  It  follows  tliat  the  defend- 
ant's acceptance  was  rather  an  undertak- 
ing to  pay  his  own  debt  to  Woodman,  than 
Woodman's  debt  to  the  plaintifi' ;  although 
such  a  payment  of  the  former  might  oper- 
ate as  payment  of  the  latter  also."  In 
Packard  v.  Richardson,  17  Mass.  122,  the 
guarantee  seems  to  have  been  given  subse- 
quently to  the  making  of  the  note.  But, 
indejiendent  of  this,  the  case  may  have 
been  quite  well  decided,  and  yet  all  the 
extra-judicial  reasoning  which  it  contains, 
and  which  is  so  repugnant  to  the  long  un- 
broken decision  of  the  English  cases,  from 
Wain  V.  Warlters,  5  East,  10,  and  Egerton 
V.  Matthews,  6  East,  307,  down,  be,  as 
we  think  it  is,  entirely  unsound.  It  is 
really  admitted  by  Parker,  C.  J.,  in  Pack- 
ard V.  Richardson,  17  Mass.  at  p.  128, 
that  the  undertaking  of  the  defendant  was 
an  original  and  not  a  collateral  one  ;  and 
hence,  on  that  ground,  was  not  within  the 
statute  of  frauds  at  all.  It  therefore  fol- 
lows that  all  the  reasoning  in  the  case  rel- 
ative to  the  non-necessity  of  the  note  or 
memorandum  in  writing,  showing,  as  the 
statute  requires  that  it  should,  tlie  bar- 
gain or  contract,  or  agreement,  is  thus 
confessedly  merely  obiter  dicta ;  and, 
therefore,  is  wortliy,  even  in  the  Massa- 
chusetts court  itself,  only  of  such  weight 
as  that  to  which  the  soundness  or  otlier- 
wise  of  the  reasoning  entitles  it  ;  wliich, 
as  we  have  already  intimated,  we  think  is 
very  little. 

1  7  Mass.  122. 

2  6  East,  307. 


536  COMMENTARIES   ON  SALES.  [BOOK   IV. 

cases.  ...  If  the  technical  meaning  of  the  word  agreement  made 
it  necessary  to  insert  the  consideration  in  a  collateral  promise  to 
pay,  why  not  the  word  bargain  also,  as  Lord  Ellenborough  at  first 
supposed  ?  But  the  court.  Lord  Ellenborough  consenting,  over- 
ruled the  decision  at  nisi  prius,  and  decided  that  a  contract  for 
the  sale  of  goods  was  valid,  without  any  consideration  expressed 
i]i  the  contract." 

This,  as  we  have  shown  in  our  previous  examination  of  the 
English  cases,  is  altogether  an  inaccurate  statement  of  them.  In 
Wain  V.  Warlters  ^  there  was  no  consideration  shown,  the  promise 
being  simply  to  pay  the  amount  of  a  bill  on  Hall.  There  was  here 
neither  consideration  nor  mutuality  shown.  This  case  was  under 
the  fourth  section  of  the  statute,  and  the  writing  was  held  insuffi- 
cient to  satisfy  the  statute.  In  Egerton  v.  Mathews ^  the  considera- 
tion appeared  in  the  writing,  but  not  the  mutuality.  Lord  Ellen- 
borough seems  at  first  to  have  been  of  opinion  that  both  were 
necessary  to  be  shown  by  the  writing.  The  consideration  for  the 
defendant's  promise,  as  stated  in  the  writing,  was  "  30  bales  of 
Smyrna  cotton,"  for  tohich  (showing  the  consideration)  the  de- 
fendant was  to  give  the  plaintiff  19c?.  per  lb.  Here,  then,  was  a 
clear  statement  of  the  entire  contract,  bargain,  or  agreement,  in- 
cluding a  statement  of  the  consideration,  the  price  to  be  paid  being 
the  consideration  for  the  cotton  to  be  received,  the  cotton  to  be 
received  the  consideration  for  the  price  to  be  paid.  Lord  Ellen- 
borough here  himself  showed  that  mutuality  was  not  necessary 
to  be  shown  by  the  writing,  and  that  the  bargain,  which  showed 
the  consideration,  was  shown  in  and  by  the  writing.  His  language 
is,  the  italics  being  his  own  :  "  The  words  of  the  statute  were  satis- 
fied if  there  were  '  notes  or  memorandum  in  writing  of  the  bar- 
gain, signed  by  the  parties  to  be  charged  by  such  contract.^  And 
this  was  a  memorandum  of  the  bargain,  or  at  least  of  so  much  of 
it  as  was  sufficient  to  bind  the  parties  to  be  charged  thereivith,  and 
whose  signature  to  it  is  all  that  the  statute  requires."  That  is, 
the  whole  bargain,  including  the  consideration,  is  shown  ;  but  the 
statute  does  not  require  that  the  mutuality  shall  be  shown  in  the 
writing,  which  logically  and  conclusively  can  only  be  done  by  the 
writing  being  signed  by  both  parties  to  the  bargain,  contract,  or 
agreement ;  and  that  the  statute  does  not  require.  Hence  it  was 
held  in  this  case,  under  the  seventeenth  section,  in  perfect  consist- 
ency with  Wain  v.  Warlters,^  under  the  fourth,  that  the  statutory 
requirements  were  complied  with.  Stadt  v.  Lill,^  following  these 
cases,  was  decided  by  Lord   Ellenborough,  whose   decision  was 

1  5  East,  10.  8  5  East,  10. 

2  6  East,  307.  *  9  East,  348. 


I 


PART   VIII.]     THE   NOTE   OR   MEMORANDUM   IN   WRITING. 


637 


affirmed  by  the  full  court,  and  is  in  perfect  accord  with  both 
Wain  V.  Warlters  and  Egerton  v.  Mathews.  Here  the  case  again 
was  under  the  fourth  section,  and  the  writing  was,  "  I  guarantee 
the  payment  of  any  goods  which  J.  Stadt  delivers  to  J.  Nichols." 
It  was  held  that  this  note  or  memorandum  in  writing  met  the  re- 
quirements of  the  fourth  section  of  the  statute,  and  showed  the 
"  agreement "  under  which  the  defendant  was  to  be  charged. 
His  promise  to  pay  was /or  the  goods  to  be  furnished.  The  con- 
sideration here  again  was  shown,  but  not  the  mutuality.  But  it 
is  the  former  that  the  statute  requires,  and  not  the  latter,  as  in 
effect  was  held  in  Egerton  v.  Mathews.^  The  still  later  case  of 
Saunders  v.  Wakefield,^  which,  in  its  facts,  is  virtually  identi- 
cal with  Wain  v.  Warlters,^  followed  and  affirmed  the  decision  in 
this  latter  leading  case.  And  in  Laythoarp  v.  Bryant,'*  in  perfect 
harmony  with  all  these  cases,  it  was  at  last  definitely  and  ex- 
pressly held  that  though,  under  the  statute,  the  consideration 
must  appear  by  the  writing,  the  mutuality  need  not  do  so  ;  Tindal, 
C.  J.,  pointing  out  the  confusion  which  exists  in  mistaking  the 
mutuality  of  claims  as  the  consideration  of  the  agreement.  We 
think  the  failure  of  the  court  in  Packard  v.  Richardson  ^  to  under- 
stand the  holding  of  the  English  cases  which  they  were  examin- 
ing, leaves  the  obiter  dicta  in  that  case  unentitled  to  the  slightest 
weight.^ 


1  6  East,  307. 

2  4  B.  &  Aid.  595. 

3  5  East,  10. 

*  2  Bing.  N.  C.  735. 

5  17  Mass.  122. 

6  We  notice  that  the  editor  of  the  Mas- 
sachusetts Reports  (ed.  of  1864)  in  his 
notes,  17-19,  to  Packard  v.  Richardson, 
17  Mass.,  pp.  130-132,  points  out  the  fal- 
lacy of  the  court  in  their  reasoning  in  that 
case  as  regards  the  possibility  of  an  agree- 
ment being  set  out  in  which  no  considera- 
tion appears  ;  and  in  their  failure  to  notice 
the  distinction  between  Wain  i'.  Warlters, 
5  East,  10,  and  Egerton  v.  Mathews,  6 
East,  307,  in  both  of  which  cases  he  cor- 
rectly says  "  the  same  principle  was  ap- 
plied." For  cases  in  which  the  obiter 
dicta  in  Packard  i;.  Richardson,  17  Mass. 
122,  are  adopted,  see  Sage  v.  Wilcox,  6 
Conn.  81  ;  IJeed  v.  Evans,  17  Oliio,  128  ; 
How  V.  Keniball,  2  McLean,  103  ;  Tufts 
V.  Tufts,  3  Woodb.  &  M.  4.^j6  ;  Miller  v. 
Irvine,  1  Dev.  &  15.  (X.  ('.)  103.  And  see 
Violett  V.  Patton,  5  Cranch,  142  ;  Levy  v. 
Merrill,  4  Greenl.  189  ;  Gillighan  v. 
Boardman,  29  Me.  79  ;  Halsa  v.  Halsa, 
8  Mo.  303  ;  Bean  v.  Valle,  2  Mo.  126  ; 
Smith  V.  Ide,  3  Vt.  290;  Patchin  v.  Swift, 
21  Vt.  292  ;  Hargroves  v.  Cook,  15  Ga. 
321.     Some  of  these  cases  rest  on  the  in- 


correct assumption  that  it  was  decided  in 
Egerton  v.  Mathews,  6  East,  307,  that  the 
consideration  need  not  be  stated  in  the 
writing.  As  a  rule  the  cases  which  hold 
that  it  is  sufficient  if  the  promise,  and  not 
the  bargain,  contract,  or  agreement,  which 
the  statute  requires,  should  appear  by  the 
writing,  are  those  relating  to  a  promise  to 
pay  the  debt  of  another.  Li  connection 
with  that  clause  of  the  4th  section,  show- 
ing the  promise  without  showing  the 
consideration,  the  promise  does  show  some- 
thing in  the  nature  of  a  specific  undertak- 
ing that  is  at  least  intelligible.  But  ap- 
ply the  same  principle,  for  instance,  to  the 
clause  of  the  4th  section  relating  to  the 
sale  of  lands,  or  to  the  17th  section  relat- 
ing to  the  sale  of  goods,  and  if  the  consid- 
eration is  not  shown  then  virtually  nothing 
is  shown.  Hence,  the  English  act  (The 
Mercantile  Law  Amendment  Act,  19  &  20 
Vic.  c.  97),  which  enacts  that  a  special 
promise  to  answer  for  the  debt,  default, 
or  miscarriage  of  another  shall  not  be  in- 
valid "  by  reason  oidy  that  the  considera- 
tion for  such  promise  does  not  appear  in 
writing,  or  by  necessary  inference  from  a 
written  document,"  is  reasonable  and  in- 
telligible. But  where  a  statute  enacts  that 
contracts,  bargains,  or  agreements,  for  the 
sale  of  lands  or  goods,  must  be  in  writing  ; 


638  COMMENTARIES  ON   SALES.  [BOOK   IV, 

As  we  consider  the  reasoning  in  Packard  v.  Richardson^  a 
complete  fallacy,  and  the  cases  decided  on  its  authority  as  being 
badly  decided,  holding,  as  they  purport  to  do,  that  a  statute, 
which  requires  written  evidence  of  certain  bargains,  contracts,  or 
ao-reements,  does  not  require  such  evidence,  but  is  satisfied  by 
written  evidence  of  that  which  shows  on  its  face  a  mere  nudum 
pactum,  and  neither  a  bargain,  contract,  or  agreement,  we  would 
now  direct  attention  to  the  fact  that  Packard  v.  Richardson  ^ 
is  not  law,  and  is  not  considered  such  even  in  Massachusetts 
itself. 

Thus,  in  Attwood  v.  Cobb,^  it  was  held  by  the  Supreme  Court 
of  Massachusetts,  Shaw,  C.  J.,  delivering  the  judgment,  under  a 
clause  similar  to  the  clause  in  the  fourth  section  of  the  English 
Statute  of  Frauds,  relating  to  the  sale  of  lands,  that  the  note  or 
memorandum  in  writing  "  must  express  the  substance  of  the  con- 
ti-act"  which,  as  the  case  manifestly  shows,  must  include  the 
names  of  the  buyer  and  seller,  a  sufficient  description  of  the 
property  sold,  the  consideration,  in  the  price  which  is  to  be  paid, 
and,  where  a  part  of  the  agreement  is  that  it  is  to  be  executed  at 
some  time  limited,  that  time  must  be  stated ;  but  where  no  time  has 
been  limited,  "  it  is  to  be  done  within  a  reasonable  time ;  and, 
therefore,  the  want  of  any  stipulation  to  that  effect  does  not 
render  the  instrument  void,"  as,  semble,  it  would  do,  if  that,  or 
any  other  material  portion  of  the  substance  of  the  contract  —  d 
fortiori,  its  very  essence,  the  consideration,  that  which  is  to  be 
done  by  one  for  that  which  is  to  be  done  by  the  other  —  were 
wanting  in  the  written  note  or  memorandum  of  the  bargain,  con- 
tract, or  agreement.  We  consider  Attwood  v.  Cobb  *  to  be  in  per- 
fect accord  with  Wain  v.  Warlters,^  Egerton  v.  Mathews,^  Stadt 
V.  Lill,'  and  the  long  unbroken  line  of  English  cases,  in  which  the 
doctrine  is  established  that  a  statute  requiring  a  note  or  memo- 
randum in  writing  of  a  bargain,  contract,  or  agreement,  is  not 
satisfied,  unless  there  be  a  note  or  memorandum  of  what  the 

and  then  goes  on  to  enact  that  the  consid-  ject-matter,  the   consideration,    need   not 

eration   for  such   contracts,    bargains,   or  appear  in  or  by  tlie  writing.     And  where, 

agreements,  need  not  appear  in  or  by  the  in  this  class  of  cases,  they  do  affect  to  hold 

writing,  in  effect  repeals  the  statute  ;  as,  that  the  consideration  need  not  be  stated 

without  the  statement  of  the  considera-  in  or  appear  bv  the  writing,  they  seem  but 

tion,  which  is  really  the  subject-matter  of  to  make    Lord   EUenborough's   early  ap- 

such  contracts,   bargains,   or  agreements,  parent  mistake  of  confounding  mutuality 

that  for  which  money  is  to  be  paid,  or  for  with  the  consideration. 

which  its  reciprocal  consideration  —  land  i  17  Mass.  122. 

or  goods  —  is  to  be  given,  does  not  appear  2  Xhid. 

at  all.     So  that,  practically,  it  is  question-  8  33  jfagg,  (jg  Pick.)  227. 

able  if  any  court  of  even  a  low  grade  of  *  Ibid. 

intelligence,  could  apnly  the  false  doctrine  ^  5  East,  10. 

thai  in  a  statement  in  writing  of  a  con-  6  g  East,  307. 

tract,  bargain,  or  agreement,  its  very  sub-  T  9  East,  347. 


PART   VIII,]        THE   NOTE   OR   MEMORANDUM   IN   WRITING. 


539 


statute  expressly  requires,  namely,  of  the  bargain,  contract,  or 
agreement,  and  not  of  a  mere  naked,  unsupported  promise.^ 


1  Attwood  V.  Cobb,  33  Mass.  (16  Pick.) 
227,  was  an  action  of  assumpsit  to  recover 
damages  for  tlie  non-performance  of  an 
agreement  to  convey  certain  real  estate  to 
the  plaintiff.  The  signed  note  or  memo- 
randum in  writing  of  the  defendant  was 
as  follows:  "This  certifies  that  I  have 
sold  to  Nathaniel  Attwood  about  five 
acres  of  land,  more  or  less,  with  the  shop 
and  other  erections  and  improvements  on 
it,  which  I  own  in  M.  on  the  road  to  W., 
being  the  same  which  I  bought  of  him,  in 
consideration  of  the  same  sum  which  I 
paid  him  for  the  same,  and  interest  from 
the  time  I  purchased  the  same  till  I  paid 
for  it  (supposed  about  six  months),  with 
the  expense  of  the  deed,  also  the  taxes  for 
one  year."  In  this  case  it  was  not  even 
claimed  that  the  consideration  need  not 
be  expressed  in  the  writing  ;  but,  on  the 
contraiy,  it  was  claimed  that  the  consid- 
eration to  be  paid  for  the  land  was  set 
forth  in  the  writing  with  sufficient  cer- 
tainty. And  for  this  proposition.  Brown 
V.  Bellows,  4  Pick.  179  ;  Packard  v.  Rich- 
ardson, 17  Mass.  122  ;  Johnson  v.  Ronald, 
4  Munf.  77  ;  Penniman  v.  Hartshorn, 
13  Mass.  87;  Bateman  v.  Phillips,  15 
East,  272,  and  Egerton  v.  Mathews,  6 
East,  307,  were  cited.  The  contention  on 
the  other  hand,  ijiter  alia,  was  that  the 
writing  did  not  express  the  consideration, 
for  the  amount  paid  by  the  defendant,  the 
expense  of  the  deed,  and  the  amount  of  a 
yeai-'s  taxes,  could  not  be  ascertained  ex- 
cept by  parol  evidence.  For  this  conten- 
tion. Bird  V.  Richardson,  8  Pick.  252  ; 
Parkhurst  v.  Van  Courtland,  1  Johns.  Ch. 
273  ;  Brodie  v.  St.  Paul,  1  Ves.  Jr.  326 ; 
Blagden  v.  Bradbear,  12  Ves.  466,  and 
Clinan  v.  Cooke,  1  Sch.  &  Lef.  22,  were 
cited.  The  court  held,  not,  as  was  inti- 
mated by  the  so-called  leading  case  of 
Packard  v.  Richardson,  17  Mass.  122,  that 
it  was  not  necessary  that  the  consideration 
should  appear  in  or  by  the  writing,  but 
that,  as  has  been  established  by  Wain  v, 
Warlters,  5  East,  10  ;  Egerton  v.  Mathews, 
6  East,  307,  and  Stadt  v.  Lill,  9  East, 
347,  while,  under  either  the  4th  or  17th 
section  of  the  statute,  the  consideration 
must  be  expressed  in  the  writing,  yet,  as. 
in  the  latter  two  of  these  cases,  that  the 
consideration  was  sufficiently  expressed. 
In  so  deciding,  Shaw,  C.  J.,  said  :  "  Tlie 
other  point  is  attended  with  more  diffi- 
culty, which  is,  that  tliis  contract  is  not 
conformable  to  ttie  statute  of  frauds  in  re- 
lation to  contracts  for  the  sale  of  lands. 
St._1783,  c.  37,  §  2.  It  provides  that  no 
action  shall  be  maintained  upon  any  con- 
tract or  sale  of  lands,  unless  the  agreement 


or  some  memorandum  or  note  thereof  shall 
be  in  writing,  and  signed  by  the  party  to 
be  charged  therewith,  or  some  other  person 
by  him  thereunto  lawfully  authorized.  It 
is  quite  impossible  to  go  thiough  the  cases 
upon  this  branch  of  the  statute  of  frauds. 
It  is  sufficient  to  say,  in  general  terms,  that, 
under  this  provision,  the  contract  or  memo- 
randum must  express  the  substance  of  the 
contract,  with  reasonable  certainty,  either 
by  its  own  terms  or  by  reference  to  some 
other  deed,  record,  or  other  matter  from 
which  it  can  be  ascertained  xuith  like  rea- 
sonable certainty."  This  is  exactly  the 
doctrine  of  the  English  cases  ;  the  correct- 
ness of  wliich  even  the  Massachusetts  court, 
in  Attwood  v.  Cobb,  16  Pick.  227,  fully 
and  unqualifiedly  affirm.  Shaw,  C.  J., 
continues  :  "  The  statute  is  intended  as  a 
shield.  No  particular  forms  are  required, 
and  it  looks  at  the  substance  of  the  contract. 
It  requires  a  note  or  memorandum  of  the 
contraxt  ["of  the  contract,"  mark  !  not  of 
the  mere  unsupported  promise  which  does 
not  show  a  contract],  not  a  detail  of  all  its 
particulars.  The  court  are  of  opinion  that 
the  memorandum,  loose  and  unskilful  as 
it  is,  answers  these  conditions."  How  ? 
By  not  showing  the  consideration  ?  No  ! 
"  It  refers  definitely  to  facts,  familiarly 
known  to  the  parties,  and  in  all  probabil- 
ity, well  understood  by  them  ;  the  estate 
is  well  described  as  the  same  estate  which 
Attwood  had  before  sold  to  Cobb.  The 
principal  uncei'tainty  is  as  to  the  price  to 
be  paid ,  for,  having  considered  this  as  an 
executory  contract,  as  an  agreement  for  a 
sale,  to  be  made  afterwards,  it  follows  as  a 
necessary  consequence,  that  vjhen  it  further 
states  the  consideration,  the  paj'ment  of 
that  consideration  is  to  be  further  under- 
stood, and  it  has  the  same  meaning  as  if 
the  words  were  in  consideration  of  the 
same  sum  to  be  thereupon  paid  to  me  there- 
for, which  I  paid  him.  This  fixes  the 
sum,  together  with  some  slight  addition  of 
interest  to  be  computed  for  a  time  speci- 
fied, and  the  expense  of  a  deed.  The  lat- 
ter is  a  trifle,  may  be  consideied  as  very 
nearly  settled  by  usage,  and,  at  all  events, 
cannot  be  deemed  to  be  of  the  substance  of 
the  contract.  As  the  amount  paid  for  an 
estate  is  usually  determined  by  the  consid- 
eration ezjrressed  in  the  deed  of  conveyance, 
or  by  some  receipt  or  meniorandam,  it  is 
impossible  to  pronounce  this  contract  void 
under  the  statute,  because  it  does  not  ex- 
press with  sufficient  certainty  the  price 
[i.  e.,  the  consideration]  to  be  paid  for  the 
estate.  As  to  the  uncertainty  of  the  time  at 
which  the  agreement  is  to  be  executed,  the 
case  is  clear  that  where  on  an  executory 


540  COMMENTARIES   ON   SALES.  [BOOK   IV. 

So,  in  a  somewhat  earlier  Massachusetts  case,^  but  which,  also, 
is  later  tlian  Packard  v.  Richardson,^  the  same  doctrine,  sub- 
stantiall_v,  is  laid  down  as  is  so  well  decided  in  Attwood  v.  Cobb  ;  ^ 
viz.,  that  while  the  note  or  memorandum  in  writing  must  express 
the  substance  of  the  ivhole  contract,  including,  of  course,  the  con- 
sideration, this  is  sufficient,  if  done  with  reasonable  certainty. 

In  Bird  v.  Richardson ,i  the  note  in  writing  of  the  contract, 
signed  by  the  defendant,  was  as  follows  (not  punctuated)  :  "  It  is 
agreed  and  understood  that  Wm.  S.  Bird  is  to  have  the  refusal  of 
a  certain  farm  situated  in  A.  formerly  called  the  W.  farm  which 
farm  was  bought  by  me  for  the  sum  of  1940  dollars  upon  his 
complying  with  certain  conditions  from  the  first  day  of  April 
next  which  conditions  the  aforesaid  Wm.  S.  Bird  has  complied 
with."  It  was  not  disputed  in  this  case  that  it  was  not  necessary 
to  state  the  consideration  in  order  to  show  the  contract ;  but  it 
was  contended  that  the  consideration  did  not  sufficiently  appear  ; 
and  on  that  ground  the  plaintiff  was  nonsuited.  But  the  full 
court  reversed  the  decision,  and  held  that  the  written  contract  set 
forth  was  valid,  and  that  it  expressed  the  price  to  be  paid  (the 
consideration)  for  the  land  to  be  conveyed.  Reading  the  passage 
in  the  writing,  "  which  farm  was  bought  by  me,"  properly  punctu- 
ated, as  a  parenthetical  passage,  and  the  consideration  is  evident. 

So,  still  again,  under  the  clause  in  the  Massachusetts  statute, 
similar  to  the  17th  section  of  29  Car.  2,  c.  3,  the  same  doctrine  is 
established.  In  Fessenden  v.  Mussey  ^  a  pew  was  sold  by  auction, 
on  account  of  the  plaintiff,  to  the  defendant.  The  auctioneer,  in  his 
record  of  sales,  made  the  following  entry :  "  Sale  of  pew  in  Bul- 
finch  Street  Church,  for  ace.  Selinda  Fessenden,  Monday,  March 
24,  1845,  Pew  No.  18.  Benj.  Mussey,  $112.50.  Charges,  advertis- 
ing, and  commission,  |5."  The  Statute  of  Frauds  being  relied  on, 
the  presiding  judge  held  that  the  memorandum  was  insufficient  to 
take  the  case  out  of  the  statute.     But  the  full  court  held,  revers- 

contract,  a  party  stipulates  to  do  some  act,  or  memorandum  in  writing,  which  is  not 
and  no  time  is  limited,  it  is  to  be  done  a  note  or  memorandum  at  all  of  such  con- 
within  a  reasonable  time,  and,  therefore,  tract,  bargain,  or  agreement.  But  see 
the  want  of  any  stipulation  to  tliat  eifect,  3  Pars,  on  Con.,  15  n.  z.  ;  Br.  on  Stat,  of 
does  not  render  the  instrument  void."  Frauds,  §  391  ;  Wood  on  Frauds,  61  ; 
After  such  a  decision,  notwithstanding  Benj.  on  Sales,  4th  Am.  ed.,  243,  n.,  all 
what  we  think  is  the  utterly  unsound  rea-  citing  Packard  v.  Richardson,  17  Mass. 
soning  of  the  Massachusetts  court,  in  the  122,  without  any  exposure  of  its  incorrect- 
mere  obUer  dicta  in  Packard  v.  Richard-  ness,  and  without  showing  that  it  is  un- 
son,  17  Mass.  122,  it  does,  we  think,  ap-  supported  by  even  the  Massachusetts  court 
pear  remarkable    that   this    latter-named  itself. 

decision  of  the  Massachusetts  court  should  i  Birdv.  Richardson,  8  Pick.  (25  Mass.) 

be  constantly  cited  as  the  leading  author-  252. 

ity  for  the  proposition  that  under  a  statute  2  17  Mass.  122. 

requiring  a  note  or  memorandum  in  writ-  8  jg  Pick.  227. 

ing  of  certain  contracts,  bargains,  oragi-ee-  *  n  Cush.  (65  Mass.)  127. 
ments,  such  statute  is  satisfied  by  a  note 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM  IN   WRITING.  541 

ing  such  decision,  that  the  memorandum  having  been  made  at  the 
time  and  place  of  the  sale,  by  the  auctioneer,  or  his  clerk,  then 
acting  under  his  directions,  designating  clearly  what  ivas  sold,  by 
ivhom,  to  whom,  the  tiine  when,  and  the  price,  that  is,  the  entire 
contract,  the  requirements  of  the  statute  were  complied  with. 
This  case,  too,  is  in  the  strictest  accord  with  the  unbroken  doc- 
trine of  the  English  cases,  from  Wain  v.  Warlters  ^  down. 

The  only  apparent  explanation  for  the  utter  unsoundness  of 
courts,  as  here,  which  affect  to  hold  that  the  consideration,  i.e.  — 
that,  in  the  contract,  which  is  done  or  to  be  done  by  one  for  that 
which  is  done  or  to  be  done  by  the  other ;  showing  the  contract, 
bargain,  or  agreement  in  its  entirety,  including  the  reciprocal  con- 
siderations of  vendor  and  vendee,  promisor  and  promisee  —  need 
not  be  stated  in  writing ;  and  yet,  that  the  "  writing  must  express 
the  substance  of  the  contract  [i.e.,  of  the  whole  contract,  includ- 
ing the  consideration]  with  reasonable  certainty,  either  by  its 
own  terms,  or  by  reference  to  some  deed,  record,  or  other  matter 
from  which  it  can  be  ascertained  with  like  reasonable  certainty,"  ^ 
is  that  they  use  the  term  "  consideration  "  in  some  misty  sense,  as 
something  that  shows  "  the  motive  or  inducement  for  making  the 
agreement,"  "  rather  than  as  that  which  is  done  or  to  be  done  by 
one  of  the  parties  to  the  contract,  for  that  which  is  done  or  to  be 
done  by  the  other.* 

1  5  East,  10.  is,  it  is  an  original  contract  between  the 

2  PgT- Shaw,  C.  J.,  delivering  the  unani-  parties,  and  is  not  within  the  Statute  of 
mous  judgment  of  the  Supreme  Court  of  Frauds  at  all]  ;  forbearance  to  sue  or  the 
Massachusetts  in  Attwood  v.  Cobb,  16  surceasing  of  a  suit  being  most  frequently 
Pick.  (33  Mass.)  at  p.  230.  the  consideration    of  such   undertakings, 

^  Br.  on  St.  of  Frauds,  §  381  a  ;  where,  and  these  being  altogether  for  the  benefit 

as  we  have  shown,  supra,  he  mistakes  the  of  the  original   debtor.     This  beiug   the 

meaning  of   Bayley,    J.,  in   Saunders   v.  case,  it  would  seldom,  if  ever,  enter  into 

Wakefield,    4   B.    &   Aid.    601  ;   who,    to  the  imaginations  of  the  parties  to  such  a 

show  that,  in  the  case  of  lands  under  the  contract  that  unless  the  motives  and  con- 

fourth  section,  the  consideration  must  be  siderations  which  led  to  it  were  were  put 

stated,  shows  the  absurdity  of  a  note  in  down    in    writing,    the    engagement   was 

writing  which  purports  to  be  a  note  of  a  void."    Here  the  "motives  and  considera- 

contract  for  the  .sale  of  lands  which  fails  tions  "  of  the  Massachusetts  court  would 

to  specify  the  terms  or  the  price  ;  i.  e.,  the  seem  to  be  very  much  of  the  uncertain 

consideration.     Browne's   mistake  would  character   (as  being   something    different 

seem  to  have  some  slight  warrant  for  it,  from    the   technical   consideration  ot   the 

in   a   similar  error  made  by   the   Massa-  contract),    as   "the  motives  and  induce- 

chusetts  court,    Parker,   C.  J.,   delivering  ments  for  making  the  agreement  "  referred 

the  judgment,  in  that  case  so  fruitful  in  to  in  Br.  on  the  St.  of  Frauds, 
fallacies,  Packard  v.  Piichardson ,  17  Mass.  *  It  has  been    long  since  provided  by 

at  p.  149.     There  it  is  said  :  "Although  statute  in  Massachusetts  (see  Mass.  R.  S. 

some  consideration  must  exist  to  give  vali-  ch.  74,   §  2,  p.  472  ;   Mass.  Genl.  Sts.  ch. 

dity  to  such  a  promise  [/.  c,  to  answer  for  105,  §  2,  p.  527)   tliat  the   consideration 

the  debt,  default,   or  miscarriage  of  an-  for  such  contracts,  jiromises,  or  agreements 

other],  it  is  generally  of  a  nature  not  to  be  as  are  included  in  the   fourth  section  of 

disputed  ;  and   if  disputed,  has  been  dis-  the  English  statute  need  not  be  set  forth 

puted   by  piiriil   [not  jm-oW]   testimony,  or  expressed  in  the  writing  signed  by  the 

The   consideration    need   not   be   for   the  party  to  be  charged,  but  may  be  ])roved 

benefit  of  the  party  making  the  promise,  by  any  other  legal  evidence.     Tliis  sec- 

and  it  seldom  is  for  his  benefit  [where  it  tion  is  not  applied  to  such  contracts,  bar- 


642 


COMMENTARIES   ON   SALES. 


[book   IV. 


Thus,  in  Pcnnimaii  v.  Hartshorn,^  where  there  was  a  sale  of 
cotton  of  more  than  <£10  in  value,  the  memorandum  relied  on  to 
take  the  case  out  of  the  statute  was  as  follows,  —  "  Hartshorn  and 
Arnold  of  Providence,  —  I  sold  to  tlie  above  gentlemen  39  bales 
upland  cotton,  at  40  cents,  —  60  days  for  approved  security.  Silas 
Penniman."  The  principal  objection  to  the  sufficiency  of  this 
writing  was,  that  it  did  not  specify  the  weight  of  the  bales  of  the 
cotton.  But  the  court,  following  Egerton  v.  Mathews,^  held  that 
the  memorandum  was  sufficient ;  Parker,  C.  J.,  in  delivering  the 


gains,  or  agreements  as  are  included  in 
the  seventeenth  section  of  the  English  act, 
which  are  left,  in  effect,  as  in  the  English 
act.  We  have  already  (ante,  p.  537,  n.  6) 
directed  attention  to  the  fact  that  in  Eng- 
land the  Mercantile  Law  Amendment  Act 
merely  makes  provision  that  the  considera- 
tion for  a  special  promise  to  answer  for  the 
debt,  default, or  miscarriage  of  another  need 
not  appear  in  the  writing,  leaving  the  rest 
of  the  fourth  section  and  the  whole  of  the 
seventeenth  unaffected  by  the  amendment. 
This  is  very  different  from  providing  that 
the  consideration  for  the  sale  of  lands  or 
goods  need  not  appear  in  writing.  In  the 
case  of  a  promise  to  pay  the  debt  of  an- 
other, from  the  very  nature  of  the  subject- 
matter,  the  nature  of  the  undertaking 
itself  pretty  well  appears  by  the  promise. 
But  holding  or  enacting  that  a  statement 
in  writing  relating  to  a  contract,  bargain, 
or  agreement  for  the  sale  of  lands  or  goods 
is  sufficient  whicli  does  not  show  both 
sides  of  the  contract,  that  is,  what  is  to 
be  done  or  given  by  one  as  the  considera- 
tion for  what  is  to  be  done  or  given  by  the 
other,  is  a  virtual  repeal  of  the  statute 
altogether.  Thus,  as  Bayley,  J.,  put  it 
in  Saunilers  v.  Wakefield,  4  B.  &  Aid.  601, 
with  reference  to  contracts  for  the  sale  of 
land,  which  is  equally  correct  as  to  a  con- 
tract for  the  sale  of  goods  :  "  It  is  clear 
that  the  consideration  must  be  stated ; 
for  it  would  be  a  very  insufficient  agree- 
ment to  say,  '  I  agree  to  sell  A.  B.  my 
lands,'  without  specifying  the  terms  or  the 
price."  And  evidently  it  would  be  a  still 
more  "insufficient  agreement"  in  a  con- 
tract for  the  sale  of  lands  or  goods,  simply 
to  express  the  other  side  of  the  bargain, 
"I  agree  to  pay  C.  D.  .$1,000  in  six 
months,"  without  specifying  the  considera- 
tion for  which  the  payment  is  made.  As, 
therefore,  this  would  be  suppressing  the 
entire  subject  of  the  contract,  bargain,  or 
agreement,  it  is  not  surprising  to  find,  on 
the  one  hand,  that  not  much  force  is  given 
to  the  contradiction  involved  in  a  statute 
which  recpiires  that  a  contract  for  the  sale 
of  lands  nnist  be  evidenced  in  writing, 
and  then,  in  effect,  that  it  need  not  be  so 


evidenced  ;  or,  on  the  other  hand,  the 
cases  which  affect  to  hold  that  the  con- 
tract for  the  sale  of  goods  need  not  be  evi- 
denced in  writing  when  the  statute  says 
it  must  be  so  evidenced.  Hence,  in  Mas- 
sachusetts, notwithstanding  their  amended 
statute  and  what  they  affect  to  hold  in 
Packard  v.  Richardson,  17  Mass.  122,  it  is 
not  very  remarkable  to  find  that  the 
amendment  of  the  statute  and  the  assumed 
holding  of  their  Supreme  Court  are  both, 
in  effect,  ignored. 

Thus,  in  Morton  v.  Dean,  13  Mete.  (54 
Mass.)  385,  which  was  a  sale  of  lands,  the 
memorandum  in  writing  described  the 
premises,  named  the  vendors  and  vendee, 
and  the  price  as  well.  But  as  the  terms 
and  conditions,  which  were  a  part  of  the 
contract,  and  went  to  its  very  essence,  the 
consideration,  were  not  in  writing,  it  was 
held  that  the  statute  was  not  satisfied. 
The  court  said :  "  Where  the  connection 
between  the  memorandum  and  the  condi- 
tions is  to  be  proved  entirely  by  parol  evi- 
dence, it  is  within  the  mischief  intended 
to  be  prevented  by  the  statute.  The  terms 
of  the  agreement  ichich  are  material  [in- 
cluding, of  course,  in  the  terms  the  consid- 
eration] must  be  stated  in  tlie  writing.  As 
the  memorandum  in  this  case  does  not  re- 
fer to  the  conditions  of  sale,  the  sale  itself 
cannot  be  enforced.  The  authorities  are 
conclusive  on  these  points."  The  authori- 
ties which  were  relied  on  were  mainly 
English,  which  were  not  decided  under  a 
statute  providing  that  the  consideration  for 
such  contract  or  agreement  need  not  ap- 
pear by  the  writing.  See  Hinde  v.  White- 
house,  7  East,  558  ;  Kenworthy  v.  Scho- 
field,  2  B.  &  C.  945  ;  Clinan  v.  Cooke,  1 
Sch.  k  Lef.  22  ;  Blagden  v.  Bradbear,  12 
Ves.  471 ;  Boydell  v.  Drummond,  11  East, 
142  ;  Powell  v.  Edmunds,  12  East,  6 ; 
Jacob  I'.  Kirk,  2  M.  &  Rob.  221 ;  Attwood  v. 
Cobb,  16  Pick.  230  ;  Grant  v.  Naylor, 
4  Cranch,  224  ;  Trustees  of  Ithaca  Baptist 
Church  V.  Bigelow,  16  Wend.  23  ;  Freeport 
V.  Bartol,  3  Greenlf.  340. 

1  13  Mass.  87. 

2  6  East,  307. 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM   IN   WRITING. 


543 


judgment  of  the  court,  saying :  "  We  think  it  sufficiently  particular ; 
the  object  of  the  statute  being,  that  the  bargain  should  he  proved 
by  writing^  and  not  by  parol ;  in  order  that  purchasers  shall  not  be 
caught  up  on  loose  conversation,  or  that  the  proof  of  the  contract 
shall  not  rest  upon  the  recollection  or  integrity  of  witnesses.  Bales 
of  cotton  are  nearly  of  the  same  size  and  weight ;  and,  where  the 
weight  is  left  undetermined  by  the  contract,  it  must  be  presumed 
that  the  ordinary  average  weight  was  intended.  The  case  of  Eger- 
ton  V.  Mathews,^  which  was  cited  by  the  counsel  for  the  plaintiff, 
is  exactly  parallel  with  this ;  and  the  distinction  there  taken,  be- 
tween a  memorandum  necessary  to  enforce  a  bargain  for  the  sale 
of  goods,  and  an  agreement  which  is  required  to  oblige  one  to  pay 
the  debt  of  another,  will  hold  good  here." 

As  is  clearly  shown  by  Egerton  v.  Mathews,^  compared  with 
Stadt  V.  Lill  ^  and  the  other  English  cases  which  follow  these,  there 
is  no  distinction  whatever,  under  the  statute,  as  to  the  necessity 
of  the  whole  contract,  including,  of  course,  the  consideration,  being 
made  to  appear  by  the  writing,  whether  the  case  comes  under  the 
fourth  or  the  seventeenth  section  of  the  statute ;  it  is  evident  that 
the  Massachusetts  court  here  were  laboring  under  an  error  of  some 
kind.  The  consideration  for  the  cotton  sold,  "  40  cts.  per  lb.,  at 
sixty  days  for  approved  security;"  and  the  consideration  for  the 
price,  the  "  39  bales  upland  cotton,"  both  clearly  appeared  in  the 
writing,  which,  as  in  both  Egerton  v.  Mathews,*  under  the  seven- 
teenth section,  and  Stadt  v.  Lill,^  under  the  fourth  section,  showed 
the  entire  contract.  It  may  have  been  that  the  court,  wiiich 
thought,  in  Packard  v.  Richardson,^  —  Parker,  C.  J.,  also  deliv- 
ering the  judgment  there,  —  that  Wain  v.  Warlters ''  held,  that 
unless  "  the  motives  and  considerations  [whatever  they  mean  by 
this]  which  led  to  the  contract  were  put  down  in  writing,  the 
engagement  was  void,"  thought  there  was  something  else  con- 
nected with  the  making  of  a  contract  which  they  call  "  the  motives 
and  considerations,"  and  Browne  on  the  Statute  of  Frauds  calls 
the  "  motives  and  inducements  ;"  but  it  is  perfectly  clear  that,  in 
Penniman  v.  Hartshorn,^  as  in  Egerton  v.  Mathews,^  and  Stadt  v. 
Lill,i<^  the  reciprocal  considerations  which  went  to  make  up  the  re- 
spective contracts  were  stated  in  the  writing  ;  slightly  less  clearly, 
in  fact,  in  Stadt  v.  Lill,  under  the  fourth  section,  than  in  Egerton  v. 
Mathews,  or  Penniman  v.  Hartshorn,  under  the  seventeenth.^^ 


6  ?:ast,  307. 

Ibid. 

9  East.  348. 

6  East,  307. 

9  East,  348. 

17  Mass.  at  p.  129. 


7  5  East,  10. 

8  13  Mass.  87. 
a  6  p:ast,  307. 

10  9  East,  348. 

11  As  the  memorandum  in  writinn;  of  the 
contract   in    Penniman   v.   Hartshorn,   13 


544 


COMMENTARIES   ON   SALES. 


[book  IV. 


There  are  numerous  other  cases  in  the  Massachusetts  Supreme 
Court  itself,  in  addition  to  those  we  have  ah-eady  examined,  the 
holding  and  reasoning  in  which  show  the  utter  unsoundness  of 
what  that  court  affected  to  hold  in  Packard  v.  Richardson,^  viz., 
that  a  note  or  memorandum  in  writing,  under  the  statute,  of  the 
contract,  need  not  be  a  note  or  memorandum  of  the  contract,  but 
only  of  a  part  of  the  contract ;  one  side  of  the  contract  being 
open  to  be  proved  by  parol.  Thus,  in  Gill  v.  Bicknell,^  the  ab- 
surdity of  what  we  think  is  an  utterly  ridiculous  proposition  is 
virtually  conceded.  There  the  question  came  up  as  to  the  suffi- 
ciency of  the  note  or  memorandum  in  writing  of  a  contract  for 
sale  of  land,  by  auction,  where  all  the  terms  of  a  contract  appeared 
in  the  writiiig,  and  the  court  again  held,  as  they  had  previously 
held  in  Morton  v.  Dean,^  that  the  writing  must  "  constitute  a  con- 
tract [that  is,  an  entire  contract ;  not  the  one  side  of  a  contract, 
as,  in  Packard  v.  Richardson,* the  court  affected  to  hold  was  all 
that  was  necessary;  dissenting  from  the  well-decided  case  of  Wain 
V.  Warlters,^  which  expressly  held  the  contrary],  or  the  memor- 
andum of  a  contract, /rom  which  its  substance  and  terms  may  he 
gatheredr  ^ 


Mass.  87,  was  only  signed  by  the  vendor, 
and  not  by  the  vendees,  —  the  latter  of 
whom  were  the  parties  sought  to  bo 
charged,  —  the  position  was  taken  that  the 
writing  was  insufficient  under  the  statute, 
as  it  did  not  show  mutuality.  And  it  is 
quite  possible,  and  looks  probable,  that, 
being  misled  by  Lord  Ellenborough's  ap- 
parent first  and  wrong  impression  in 
Egerton  v.  Mathews  (6  East,  310),  that 
mutuality  must  appear  in  the  written 
memorandum  of  an  agreement  under  the 
fourth  section,  but  not  of  a  bargain  under 
the  seventeenth,  the  Massachusetts  courts 
confounded  the  mutuality  of  a  contract, 
which  is  one  thing,  with  the  considera- 
tion, which  is  quite  another.  It  is  at  least 
quite  obvious  tliat  neither  in  Packard  v. 
Richardson,  17  Mass.  at  p.  129,  nor  in  Pea- 
uiman  v.  Hartshorn,  13  Mass.  87,  had  the 
court  at  all  a  correct  conception  as  to  the 
simple  question  as  to  what  the  considera- 
tion in  a  contract  is.  Certainly  in  Penni- 
man  v.  Hartshorn,  13  Mass.  87,  the  con- 
sideration appeared  in  every  way  quite  as 
clear  as  it  did  in  Stadt  v.  Lill,  9  East, 
348,  and  in  other  cases  which  have  fol- 
lowed it,  under  the  fourth  section  of  the 
English  statute. 

1  17  Mass.  122. 

2  56  Mass.  (2  Cush.)  355,  359. 

3  13  Met.  385. 

*  17  Mass.  122. 

^  5  East,  10. 

^  On  the  point  in  question.  —  another 


point  being  also  involved  in  the  case  which 
still  further  exemplifies  the  necessity  (under 
the  holding  in  the  Massachusetts  Court, 
and  notwithstanding  their  statutory  pro- 
vision that  the  consideration  need  not  ap- 
pear in  the  writing)  of  the  lohole  contract 
appearing  in  and  by  the  writing,  —  Shaw, 
C.  J.,  in  delivering  the  unanimous  judg- 
ment of  the  court,  says  :  "  Because  it  is  a 
contract  for  the  sale  of  lands,  no  action 
will  lie  unless  the  contract,  promise,  or 
agreement,  or  some  memorandum  or  note 
tiiereof,  is  in  writing,  signed  by  the  party 
to  be  charged  therewith,  or  by  some  per- 
son by  him  authorized.  Rev.  Stats,  c.  74, 
§  1,  cl.  4."  Then,  after  referring  to  the 
reason  why  the  auctioneer  is  to  be  deemed 
the  agent  of  the  bidder  to  sign  the  mem- 
orandum which  is  to  prove  "the  making 
and  terms  of  the  contract,"  i.  e.,  of  the 
whole  contract,  the  learned  chief  justice 
proceeds :  "  But  this  presupposes  that  the 
name  is  thus  written  on  a  book  or  mem- 
orandum prepared,  under  a  caption  stat- 
ing the  subject-matter  and  terjns  of  the  sale; 
or  on  the  catalogue,  advertisement,  or  writ- 
ten or  printed  conditions  of  sale ;  or  so 
definitely  referring  thereto  as  to  make  the 
paper  referred  to  a  part  of  the  memoran- 
dum. The  bid.  is  in  the  nature  of  an  affir- 
mative answer,  and  it  is  necessary  to  con- 
sider the  proposal  in  order  to  understand 
the  effect  of  the  answer.  Both  together 
may  constitute  a  contract,  or  the  memoran- 
dum of  a  contract,  from  which   its  siih- 


PART    Vlir.]        THE   NOTE   OR   MEMORANDUM    IN    WRITING. 


545 


The  later  case  of  Sanborn  v.  Flagler,^  too,  in  effect  shows,  as  in 
the  English  cases,  that,  in  a  contract  for  the  sale  of  goods  within 
the  seventeenth  section  of  the  act,  the  whole  contract,  or  a  memo- 
randum of  the  whole  contract,  must  appear  in  the  writing,  although 
the  mutuality  may  be  proved  aliunde.  But  the  consideration,  un- 
questionably, must  appear,  or  no  "  complete  contract "  is  shown. 
Thus,  in  this  case,  it  was  held  that  the  note  or  memorandum  of 
the  contract  did  set  forth, "  upon  its  face,  in  such  manner  as  to  be 
understood  by  the  court,  the  essential  elements  of  a  contract.^' 
These  were  :  The  contracting  parties ;  "  the  nature  and  descrip- 
tion of  the  merchandise,  the  quantity  sold,  the  price  to  be  paid 
therefor,  the  terms  of  payment,  and  the  time  within  which  the 
article  was  to  be  delivered."  In  these  "  essential  elements  of  a 
contract,"  the  reciprocal  considerations,  —  not,  perhaps,  the  so- 
called  "  motives  and  inducements,"  or  "  motives  and  considera- 
tions," —  clearly  appeared.^ 


stance  and  terms  may  be  gathered.  In  a 
recent  case  in  this  court  it  was  held,  that 
the  putting  down  the  name  of  a  bidder 
was  not  a  sufficient  memorandum  in  writ- 
ing, because  it  was  not  under  such  a  cap- 
tion, and  did  not  so  definitely  refer  to 
any  catalogue,  advertisement,  written  or 
printed,  or  conditions  of  sale,  as  to  make 
them  part  of  the  memorandum.  Morton 
V.  Dean,  13  Met.  385.  Commonly  the 
advertisement  expresses  the  property  to  he 
sold,  and  if  not  the  names  of  the  owners, 
the  actual  owners,  represented  by  the  auc- 
tioneer,  together  with  tlu  time  and  other 
terms  of  payment ;  so  that  when  the 
name  of  the  bidder  and  the  price  are 
added,  the  whole  constitutes  the  elements 
end  substance  of  a  complete  contract.  But, 
it  may  be  asked,  a  contract  between  whom  ? 
Obviously  the  owner  or  owners  on  the  one 
side,  and  the  ])urchaser  or  purchasers  on 
the  other.  Prima  facie,  therefore,  the 
auctioneer's  memorandum,  or  a  memoran- 
dum by  the  bidder,  in  his  own  name,  con- 
stitutes such  a  contract."  All  of  which, 
notwithstanding  the  provision  in  the  Mas- 
sachusetts statute  (Rev.  Stats,  p.  472,  c.  74, 
§  2)  that  the  consideration  "need  not  be 
set  forth  or  expressed  in  the  writing,"  is 
a  veiy  plain  imi)lication  that  the  writing 
must  "constitute  the  elements  and  sub- 
stance of  a  complete  contract,"  inchi<ling 
that  which  is  to  be  given  for  that  which 
is  to  be  received,  and  that  which  is  to  be 
received  for  tliat  which  is  to  be  given ;  or, 
the  consideration. 

1  91  Mass.  (9  Allen)  474. 

'•^  Sanborn  v.  Flagler,  91  Mass.  (9  Al- 
len) 474.  was  an  action  against  the  de- 
fendants for  refusal  to  deliver  50  tons  of 
best  refined  iron.     The  statute  of  frauds 


was  relied  on  by  the  defendant.  There 
was  a  note  in  writing  of  the  contract,  as 
follows  :  — 

"  Will  deliver  S.  R.  &  Co.  best  refined 
iron  50  tons  within  90  days,  at  5  cents 
2Kr  lb.,  4  of  cash.  Plates  to  be  10  to  16 
inches  wide,  and  9  feet  to  11  long.  This 
offer  good  till  2  o'clock,  Sept.  11,  1862." 

This  was  signed  with  the  initials  of  one 
of  the  plaintiffs  and  one  of  the  defendants, 
each  representing  his  own  firm.  The  offer 
was  verbally  accepted  before  two  o'clock 
on  the  day  named.  The  court  held  that 
the  statute  was  satisfied.  The  judgment, 
which  was  delivered  by  one  of  the  ablest 
jurists  either  of  England  or  of  this  coun- 
try, Bigelow,  C.  J.,  is  in  most  perfect  har- 
mony with  the  English  cases  of  Wain  v. 
Warlters,  5  East,  10;  Egerton  v.  Mathews, 
6  East,  307;  Stadt  r.  Lill,  9  East,  348, 
and  the  other  English  and  American  cases 
which  accord  with  the  holding  in  those 
well-decided  cases.  The  learned  chief  jus- 
tice, in  disposing  of  the  questions  raised 
in  the  case,  said:  "The  note  or  memo- 
randum on  which  the  plaintiffs  rely  to 
maintain  their  action  contains  all  the 
requisites  essential  to  constitute  a  binding 
contract  within  tlie  staticte  of  frauds.  It  is 
not  denied  by  the  defendant  that  a  verbal 
accejitance  of  a  written  offer  to  sell  mer- 
chandise is  sufficient  to  constitute  a  com- 
plete and  obligatory  agreement  on  which 
to  charge  the  yier.son  by  whom  it  is  signed. 
In  such  case,  if  the  memoiandum  is  other- 
wise sufficient  when  it  is  assented  to  by 
him  to  whom  the  proposal  has  been  made, 
the  contract  is  consummated  by  tlu;  meet- 
ing of  the  minds  of  the  two  parties,  and 
the  evidence  necessary  to  render  it  valid 
and  capable  of  enforcement  is  supplied  by 


35 


546 


COMMENTARIES  ON   SALES. 


[book  IV. 


Asrain,  in  Farwell  v.  Mather  ^  which  was  an  action  on  a  contract 
for  the  sale  of  lands,  where  $16,500  was  to  be  paid,  and  there  was 


the  signature  of  the  party  sought  to  be 
charged  to  the  offer  to  sell.  Indeed,  the 
rule  being  well  settled  that  the  signature 
of  the  defendant  only  is  necessary  to  make 
a  binding  contract  within  the  provisions 
of  the  statute  relating  to  sales  of  mer- 
chandise, it  necessarily  follows  that  an 
offer  to  sell,  and  an  express  agreement  to 
sell,  stand  on  the  same  footing,  inasmuch 
as  the  latter,  until  it  is  accepted  by  the 
other  party,  is  in  effect  nothing  more  than 
a  proposition  to  sell  on  the  terms  indi- 
cated. The  acceptance  of  the  contract  by 
the  party  seeking  to  enforce  it  may  always 
be  proved  by  evidence  aliunde.  The  ob- 
jections on  which  the  defendants  rely  are 
twofold.  The  first  is,  that  the  note  or 
memorandum  does  not  set  forth  upon  its 
face,  in  such  manner  as  to  be  understood 
by  the  court,  the  essential  elements  of  a 
contract.  But  this  position  is  not  tenable. 
Tlie  nature  and  description  of  the  merchan- 
dise, the  quantity  sold,  the  price  to  be  paid 
tJierefor,  the  terms  of  payment,  and  the  time 
within  which  the  article  was  to  be  deliv- 
ered, are  all  clearly  set  forth.  But  it  is 
urged  that  the  paper  does  not  disclose 
which  of  the  parties  is  the  purchaser  and 
which  the  seller,  and  that  no  purchaser  is, 
in  fact,  named  in  the  paper.  This  would 
be  a  fatal  objection  if  well  founded.  There 
can  be  no  contract,  or  valid  memorandum 
of  a  contract,  which  does  not  show  who 
are  the  contracting  parties.  [And  equally 
so,  clearly,  which,  if  silent  as  to  the  con- 
sideration, does  not  show  the  contract  at 
all.]  But  there  is  no  such  defect  in  the 
note  or  memorandum  held  by  the  plain- 
tiffs. The  stipulation  is  explicit  to  de- 
liver merchandise  to  S.  R.  &  Co.  It  cer- 
tainly needs  no  argument  to  demonstrate 
that  an  agreement  to  deliver  goods  at  a 
fixed  price,  and  on  specifiid  terms  of  pay- 
ment, is  an  a/jreeinent  to  sell.  [And  it 
certainly  should  need  no  argument  to 
demonstrate  that  the  converse  of  this  is 
not  an  agreement  to  sell.]  Delivery  of 
goods  at  a  stipulated  price  constitutes  a 
sale ;  an  agreement  for  such  delivery  is  a 
contract  of  sale.  Nor  can  there  be  any 
doubt  raised  as  to  the  intrinsic  import  of 
the  memorandum  concerning  the  charac- 
ter or  capacity  in  which  the  parties  are 
intended  to  be  named.  A  stipulation  to 
deliver  merchandise  to  a  person  clearly 
indicates  that  he  is  the  purchaser,  because 
in  every  valid  sale  of  goods  delivery  must 
be  made  by  the  vendor  to  the  vendee.  We 
can,  therefore,  see  no  ambiguity  in  the  in- 
sertion of  the  name  of  the  purchaser  or 


seller.  Tlie  case  is  much  stronger  in  favor 
of  the  validity  of  the  memorandum  in  this 
respect  than  that  of  Salmon  Falls  Manuf. 
Co.  V.  Goddard,  14  How.  446.  There  only 
the  names  of  the  parties  were  inserted, 
without  any  word  to  indicate  which  was 
the  buyer  and  which  was  the  seller.  It 
was  this  uncertainty  in  the  memorandum 
which  formed  the  main  ground  of  the 
very  able  dissenting  opinion  of  Mr.  Jus- 
tice Curtis  in  that  case.  So  in  the  lead- 
ing case  of  Bailey  v.  Ogdens,  3  Johns. 
399,  there  was  nothing  in  the  memoran- 
dum to  show  which  of  the  two  parties 
named  agreed  to  sell  the  merchandise. 
But  in  the  case  at  bar,  giving  to  the  paper 
a  reasonable  interpretation,  as  a  brief  doc- 
ument drawn  up  in  the  haste  of  business, 
and  intended  to  express  in  a  few  words 
the  terms  of  a  bargain,  we  cannot  enter- 
tain a  doubt  that  it  indicates  with  suffi- 
cient clearness  that  tlic  plaintiffs  were  the 
purchasers  and  the  defendants  tlie  seller  of 
the  merchandise,  mi  the  terms  therein  ex- 
pressed. Indeed,  we  can  see  no  reason 
why  a  written  agreement  by  one  party  to 
deliver  goods  to  another  party  does  not  as 
clearly  show  that  the  latter  is  the  pur- 
chaser and  the  former  the  seller,  as  if  the 
agreement  had  been  in  express  terms  by 
one  to  sell  goods  to  the  other. 

"  The  other  objection  to  the  memoran- 
dum is,  that  the  name  of  the  party  sought 
to  be  charged  does  not  appear  on  the  face 
of  the  paper.  If  by  this  is  meant  that  the 
signatures  of  all  the  persons  who  are  named 
as  defendants  are  not  affixed  to  the  mem- 
orandum, or  that  it  is  not  signed  with  the 
copartnership  name  under  which  it  is  al- 
leged that  the  persons  named  as  defend- 
ants do  business,  the  fact  is  certainly  so. 
But  it  is  not  essential  to  the  validity  of 
the  memorandum  that  it  should  be  so 
signed.  An  agent  may  write  his  own 
name,  and  thereby  bind  his  principal  ; 
and  parol  evidence  is  competent  to  prove 
that  he  signed  the  memorandum  in  his 
capacity  as  agent.  On  the  same  principle, 
a  partner  may,  by  his  individual  signa- 
ture, bind  the  firm,  if  the  contract  is 
within  the  scope  of  the  business  of  the 
firm,  which  may  be  shown  by  extrinsic 
evidence.  Soames  v.  Spencer,  1  D.  &  R. 
32  ;  Higgins  v.  Senior,  8  M.  &  W.  834  ; 
Williams  v.  Bacon,  2  Gray,  387,  393.  Be- 
sides, in  the  case  at  bar,  the  action  in 
effect  is  against  Flagler  onl}'.  He  only 
has  been  served  with  process,  and  appears 
to  defend  the  action.  Whether  he  signed 
as  agent  for  the  firm  or  in  his  individual 


92  Mass.  (10  Allen)  322. 


PART   VIII.]        THE   NOTE    OR   MEMORANDUM    IN   WRITING.  547 

a  note  or  memorandum  in  writing  to  that  effect,  signed  by  the 
parties  to  be  charged,  and,  in  fact,  by  both  the  parties  to  the  con- 
tract ;  yet,  notwithstanding  the  Massachusetts  statute,  which  pro- 
vides that  the  consideration  "  need  not  be  set  forth  or  expressed 
in  the  writing,"  "but  may  be  proved  by  any  other  legal  evidence,"  ^ 
it  was  held  that  as  the  consideration  for  this  "  promise,  contract, 
or  agreement"  did  not  sufficiently  appear  in  the  writing,  the  con- 
tract was  void  under  the  statute.  True,  the  consideration  here 
was  the  other  subject-matter  of  the  contract ;  but  the  considera- 
tion is  always  one  part  or  the  other,  reciprocally,  of  the  contract ; 
and  if,  either  under  the  English  Statute  of  Frauds,  or  under  the 
Massachusetts  statute,  which  provides  that  in  a  written  memor- 
andum of  a  contract  for  the  sale  of  lands,  the  consideration  need 
not  be  shown,  only  one  side  of  the  contract  need  appear  in  the 
writing;  there  would  seem  to  be  the  same  difficulty  in  making 
out  the  contract  of  the  parties,  as  well  by  the  omission  of  the 
subject-matter  of  the  contract  on  the  one  side  as  on  the  other. 
While  a  provision  that  the  consideration  for  the  promise  to  pay 
the  debt  of  another  need  not  appear  in  the  writing,  may  be  fea- 
sible, leaving  still  something  like  an  appreciable  undertaking  to 
be  shown  by  the  writing ;  with  such  a  provision  applied  to  sales 
of  lands  or  goods,  the  statute,  requiring  written  evidence  of  the 
contract,  bargain,  or  agreement,  is,  in  effect,  repealed.^ 

capacit3'  is  immaterial.     In  either  aspect  section  of  the  English  act,  did  not  have  to 

he  is  liable  on  the  contract.     It  is  hardly  appear  in  and  by  the  writing.     However 

necessary  to  add  that  the  signature  is  valid  this  may  be,  in  some  of  the  States  they 

and  binding  though  made  with  the  ini-  have  gone  further,  and  have  actually  en- 

tials  of  the  party  only,   and   that   parol  acted   that  the    consideration    need    not 

evidence  is  admissible  to  explain  and  ap-  appear  in   the  note  or   memorandum   in 

ply  them.     Phillimore  v.  Barry,  1  Camp,  writing  of  any  contract  which,  under  their 

513  ;    Salmon   Falls  Manuf.  Co.  v.  God-  statute  of  frauds,  is  required  to  be  evi- 

dard,   14  How.  446  ;  Bany  v.  Coombe,  1  denced  by  writing.      Thus,  in  Michigan, 

Pet.  640."  Comp.  Stats.  §  6186,  while  in   effect  re- 

1  Mass.  Rev.  Stats,  p.  472,  c.  74,  §  2.  taining  the  17th  section  of  the  English 

2  For  some  reason  or  another  the  pro-  statute,  reipiiring  a  note  or  menioiatulum 
vision  in  the  Massachusetts  statute,  that  in  writing  of  Uie  bargain,  to  render  valid 
the  consideration  need  not  be  shown  by  any  contract  for  the  sale  of  any  goods, 
the  writing,  is  applied  only  to  the  section  wares,  or  merchandise,  for  the  ])rice  of 
analogous  to  the  4th  section  of  the  Eng-  $50  or  more,  they  have  actually  enacted 
lish  statute,  leaving  the  section  analogous  (Ibid.  §  6189)  that  "the  consideration  of 
to  the  17th  section  of  the  English  statute  any  contract,  agreement,  or  promise  re- 
unaffected  by  such  an  absurd  and  destruc-  quired  by  this  cliapter  to  be  in  writing, 
tive  provision.  It  may  have  been  that  the  need  not  be  expressed  in  the  written  con- 
Massachusetts  legislators,  like  so  many  of  tract,  agreement,  or  promise,  or  in  any 
the  text-writers,  rested  under  the  delusion  note  or  memorandum  thereof,  but  may 
that  the  indispensable  ingredient  in  all  be  j)roved  by  any  other  legal  evidence." 
executory  agreements  of  a  consideration  This  provision  for  omitting  the  evidence 
was  something  different  from  what  it  in  writing  of  one  half  of  tlie  contract  or 
really  is  ;  and  that,  therefore,  a  contract  bargain,  which  the  ]>revious  section  re- 
—  an  entire  contract  —  could  be  shown  quired  to  be  wholly  evidenced  by  the 
without  sliowing  one  part  of  the  contract,  writing,  is  very  much  like  Hamlet  with 
the  consideration  for  the  other  ])art  of  it ;  Hamlet  left  out.  But,  to  make  tlie  effect 
and  that,  as  stated  by  .some  of  the  text-  of  §  6189  still  more  uncertain,  by  §  6187 
writers,  the  consideration,  under  the  17th  it  is  enacted  that,  "  Whenever  any  goods 


548 


COMMENTARIES   ON   SALES. 


[book   IV. 


The  defect  in  the  memorandum  of  the  contract,  in  Grace  v. 
T)avison,i   signed   bj    the  party  whom  it  was  sought  to  charge, 


shall  be  sold  at  auction,  and  the  auction- 
eer shall,  at  the  time  of  sale,  enter  in  a 
sale  book  a  memorandum  specifying  the 
nature  and  price  of  the  j^roperly  sold,  the 
terms  of  the  sale,  the  name  of  the  'par- 
chaser,  and  tJie  name  of  the  person  on, 
whose  account  the  sale  is  made,  such  mem- 
orandum shall  be  deemed  a  memorandum 
of  the  contract  of  sale  within  the  meaning 
of  the  last  section."  After  this  statutory 
definition  of  the  "memorandum  of  the 
contract  of  sale,"  in  which  every  ingre- 
dient of  the  contract  of  sale  is  required  to 
be  stated  in  the  writing,  it  is  rather  puz- 
zling to  tell  what  they  fancy  "the  con- 
sideration of  a  contract  or  agreement  of 
sale"  is,  when  they  enact,  as  above  named, 
that  "the  consideration  of  any  contract, 
agreement,  or  promise  required  by  this 
chapter  to  be  in  writing,  need  not  be  ex- 
pressed in  the  written  contract,  agree- 
ment, or  promise,  or  in  any  note  or  mem- 
orandum thereof,  but  may  be  proved  by 
any  other  legal  evidence."  First  strictly 
defining  the  written  note  or  memorandum 
which  is  to  answer  the  requirements  of 
the  section,  and  then  going  on  to  enact 
that  one  half  of  such  defined  note  or  mem- 
orandum is  unnecessary,  certainly  leaves 
the  matter  iu  the  gravest  doubt  what  they 
mean  by  "consideration."  It  seems  cer- 
tain that,  though  they  may  perhaps  mean 
mutuality,  or  what  is  sometmies  called 
" the  motives  and  inducements,"  or  "the 
motives  and  considerations,"  hy  "consid- 
eration "  they  clearly  cannot  mean  tlie 
consideration;  i.e.,  that  which  the  one 
party  to  the  contract  is  to  receive  for 
what  tlie  other  is  to  pay,  or  what  the 
one  party  is  to  pay  for  that  which  he  is 
to  receive. 

Where  the  promise  is  to  pay  the  debt 
of  another,  tlie  other  part  of  the  contract, 
namely,  the  promisee's  part,  is  the  consid- 
eration, and  no  case,  outside  of  the  ques- 
tion of  mutuality,  as  in  Wain  v.  Warlters, 
5  East,  10,  disputes  this.  See  Jones  v. 
Palmer,  1  Doug.  (Mich.),  379;  Hall  v. 
Soule,  11  Mich.  491 ;  Leonard  v.  Vreden- 
burg,  8  Johns.  29  ;  DeWolf  v.  Rabaud,  1 
Pet.  476  ;  Nelson  v.  Dubois,  13  Johns. 
175  ;  Bailey  v.  Freeman,  4  Johns.  283  ; 
11  Johns.  221  ';  Wheelwright  v.  Moore,  1 
Hall  (N.  Y.  Slip.  Ct.),  20i  ;  2d  ed.  225  ; 
Myers  v.  Morse,  15  Johns.  425  ;  Huntt;. 
Adams,  5  Mass.  358.  The  confusion  as 
to  the  consideration  seems  confined  to 
such  cases  as  sales  of  land  under  the  4th 
section  of  the  statute  of  frauds,  or  the 
sale  of  goods  under  the  17th  section.     In 


these  cases  it  seems  very  generally  to  be 
thought,  as  we  have  shown,  that  the  con- 
sideration is  something  called  the  "mo- 
tives or  inducements,"  or  "the  motives  or 
considerations,"  dehors  the  contract.  In 
Whipple  v.  Parker,  29  Mich.,  369,  373, 
the  court  said:  "The  consideration  for 
the  agreement,  promise,  or  stipulation  of 
the  party  to  be  charged  and  wliich  is  in 
writing,  may,  and  perhaps  generally  does 
consist  of  counter  promises  or  executory 
stipulations  to  be  performed  by  the  other 
party."  This  is  true,  with  reference,  gen- 
erally, to  cases  where  the  consideration  is 
but  a  promise  for  a  promise  :  as  a  promise 
to  pay  the  debt  of  another,  for  or  in  con- 
sideration of  the  promise  of  the  creditor  to 
forbear  to  sue,  or  to  give  time.  Here,  to 
show  the  contract,  the  mutual  promises 
must  be  alleged  in  the  writing  signed  by 
the  party  to  be  charged.  But,  in  a  case, 
for  instance,  of  a  sale  of  goods  for  cash,  the 
goods  to  be  received  are  the  consideration 
for  the  money  to  be  paid,  as  in  Egertoa  v. 
Mathews,  6  East,  307  ;  and  there,  the  con- 
sideration is  sufficiently  shown  without 
any  allegation  in  the  writing  of  mutual 
promises. 

It  is  just  possible  that  some  of  the  text- 
writers  who  have  incorrectly  said  that  it 
is  necessary  that  the  consideration  should 
appear  by  the  writing  where  the  contract 
comes  within  the  4th  section  of  the  stat- 
ute, but  not  where  it  comes  within  the 
17th,  had  reference  to  the  necessity,  not, 
strictly,  of  mutuality,  but  of  an  allegation 
as  to  the  mutual  promises  of  the  parties, 
in  order  to  show  tlie  consideration.  But, 
if  this  is  their  meaning,  a  comparison  of 
Egerton  v.  Mathews,  6  East,  307,  with 
Stadt  V.  Lill,  9  East,  348,  —  the  convei-se 
of  Wain  v.  Warlters,  5  East,  10,  —  should 
have  shown  them  the  incorrectness  of  that 
view.  See  Detroit,  &c.  R.  R.  Co.  v. 
Forbes,  30  Mich.  165,  at  p.  176,  where, 
notwithstanding  the  statutory  provision 
to  which  we  have  referred,  that  the  con- 
sideration for  the  contract,  within  the 
statute,  need  not  appear  in  the  writing  ;  it 
is  doubted,  as  to  whether,  where  the  only 
consideration  for  the  defendant's  prom- 
ise is  the  promise  or  undertaking  of  the 
plaintiHT,  and  that  is  one  which,  to  be 
valid  when  made,  must  be  in  writing  ;  a 
mere  verbal  promise,  which  is  of  no  legal 
validity,  would  of  itself  constitute  a  suffi- 
cient consideratiim  for  the  promise  of  the 
defendant,  so  as  to  render  the  latter  bind- 
ing at  the  time  it  is  made  ;  on  the  ground 
that  there  would  be  a  want  of  mutuality, 


1  114  Mass.  16. 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM   IN   WRITING. 


549 


was  not  with  reference  to  the  subject-matter  of  the  sale,  but  as 
to  the  mode   of  payment   of   the  consideration  money,  and  the 


which  is  generally  essential  to  the  validity 
of  contracts.  Some  such  consideration  as 
this  seemed  to  he  iu  the  mind  of  Lord  El- 
lenborough,  in  Wain  v.  Warlters,  5  East, 
10,  and,  at  first,  at  nisi  prius,  in  Egerton 
V.  Mathews,  6  East,  307,  and  would  seem 
to  go  to  all  cases  within  the  purview  of 
the  statute.  But  the  actual  decision  in 
the  latter  of  these  cases  ;  in  Stadt  v.  Lill, 
9  East,  3-48,  and  in  the  other  cases  follow- 
ing these,  has  established,  that,  as  the 
statute  requires  that  the  note  or  memoran- 
dum in  writing  should  be  signed  by  only 
the  party  to  be  charged,  it  will  be  effectual 
within  the  statute,  if  it  show  on  its  face, 
by  fair  inference,  the  whole  contract,  i.  c, 
what  both  parties  are  to  do  under  it,  even 
though  the  writing  furnished  legal  evi- 
dence to  allow  of  the  enforcement  of  the 
contract  by  but  one  party  to  it  only.  See 
Hall  V.  Soule,  11  Mich.  494.  In  James 
V.  Muir,  33  Mich.  223,  it  would  seem 
that  the  court  inclined  to  the  view  (see 
pp.  227,  230),  notwithstanding  the  provis- 
ion that  the  consideration  of  the  contract 
of  sale  need  not  appear  in  the  writing, 
that,  at  least  where  a  price  is  agreed  on, 
the  memorandum  should  show  the  price, 
as  well  as  "all  the  other  terms  of  the  con- 
tract, and  especially  must  show  that  it  is  a 
contract  of  sale."  In  Howell's  Annotated 
Statutes  (Mich.),  1606,  n.,  it  is  stated  as 
the  hohling  of  the  court  in  James  v.  Muir, 
33  Mich.  223,  that  "A  memorandum  or 
contract  of  sale  for  the  price  of  fifty  dollars 
or  more,  must  show  all  the  terms  of  a  com- 
plete agreement  of  sale.  And,  if  the  con- 
ti-act  is  executory,  the  price  must  be 
named,  as  well  when  a  reasonable  price  as 
when  any  other  is  agreed  upon."  If,  in 
the  case,  the  sale  had  been  by  auction, 
under  sec.  6187  (old  sections  3185,  4700), 
which  requires  "  the  nature  and  price  of 
the  property  sold,  the  terms  of  the  sale," 
etc.,  to  be  set  out  in  the  note  or  memoran- 
dum, it  would  .seem  difficult  to  hold  that 
such  note  or  memorandum  would  be  good 
■where  these  items  were  not  sot  out,  not- 
withstanding the  section  which  provides 
that  "  the  consideration  "  need  not  be  ex- 
pressed in  the  writing.  But,  from  the 
apparent  holding  of  the  court  in  James  v. 
Muir,  33  Mich.,  223,  they  would  seem  to 
imply,  notwithstanding  that  section,  that 
in  all  cases  of  sales,  the  price  as  well  as 
"all  the  other  terms  of  the  contract" 
must  appear  in  the  writing.  This,  as  we 
have  shown,  is  the  law  under  the  linglish 
statute,  and  under  analogous  statutes  to 
it ;  and,  in  the  Michigan  statute,  as  well 
as  by  many  of  the  law  writers,  the  "con- 
sideration" of  a  contract  of  sale  must  be 


construed  as  something  in  some  way  en- 
tirely outside  of  the  contract,  not  covered 
by  that  which  is  purchased,  or  that  which 
is  to  be  paid,  or  the  terms  of  the  contract, 
which,  with  the  parties  to  it,  shows  the 
entire  contract.  What  this  undefined 
something  is,  whether  mutuality,  or 
"motives  and  inducements,"  or  "mo- 
tives and  considerations,"  is  not,  by  any 
means,  clear.  Certainly,  it  seems  to  us, 
whether  the  contract  be  within  the  4th  or 
17th  section  of  29  Car.  2,  c.  3,  the  note 
or  memorandum  in  writing  signed  by  the 
party  to  be  charged  must  be  a  note  or 
memorandum  of  the  entire  contract,  and 
equally  so  under  the  17th  section  as  under 
the  4th ;  the  very  respectable  authorities 
in  England  and  in  this  country,  to  whom 
we  have  previously  referred,  to  the  con- 
trary, notwithstanding. 

In  McElroy  v.  Buck,  35  Mich.  434, 
the  court  expressly  adhered  to  the  decision 
in  James  v.  Muir,  33  Mich.  223,  by  which 
they  held  the  case  of  McElroy  v.  Buck 
was  governed.  In  this  case  the  verbal 
agreement  was  for  the  sale  of  a  double- 
deck  car  of  hogs  at  5  cents  per  lb., 
payable  on  or  before  August  25.  The 
consideration  for  the  hogs  was,  therefore, 
the  5  cents  per  lb.,  payable  on  or  before 
August  25,  as  the  consideration  in  Egerton 
V.  Mathews,  6  East,  307,  for  the  30  bales 
of  Smyrna  cotton  purchased,  was  the  19d. 
per  lb., — to  be  paid  "as  soon  as  our 
certificate  is  complete."  The  memorandum 
in  writing  in  McElroy  v.  Buck,  35  Mich. 
434,  signed  by  the  party  to  be  charged, 
showed  the  subject  of  the  purchase,  —  "I 
will  take  double-deck  car  hogs," — but 
did  not  show  the  other  part  of  the  verbal 
contract,  the  consideration,  or  price  to  be 
paid  for  the  hogs.  If  the  price  had  been 
shown,  tlie  whole  contract  would  have 
ayipeared  in  writing,  as  in  Egerton  v. 
Mathews,  6  East,  307.  But,  as  the 
Iklichigan  statute  provides  that  the  con- 
sideration of  the  contract  need  not  be  ex- 
pressed in  the  writing,  "  but  may  be 
proved  by  any  other  legal  evidence,"  and 
as  the  consideration  of  the  contract  was 
proved  by  verbal  evidence,  the  court  below 
held  that  the  statute  was  satisfied.  But 
the  Su])reme  Court  of  Michigan  reversed 
the  decision,  and  held  that,  as  "the  sub- 
stance of  the  bargain  "  was  not  shown,  the 
statute  was  not  satisfied.  As  the  substance 
of  a  bargain  or  contract  of  sale  can  only 
be  shown  by  showing  what  is  to  be  given 
for  that  which  is  to  be  received,  undei-  the 
decisions  in  James  v.  Muir,  33  Mich.  223, 
and  McElroy  v.  Buck,  35  Mich.  434,  it 
does  seem  difficult  to  give  much  force  or 


550  COMMENTARIES   ON   SALES.  [BOOK   IV. 

defect,  under  the  Statute  of  Frauds,  was  held  fatal.  The  mem- 
orandum there  relied  on  was  as  follows :  "  Boston,  February  18, 
1873.  Received  from  J.  J.  Grace  the  sum  of  fifty  dollars,  as  part 
payment  of  house  No.  2,  Hayward  Place,  sold  to  him  on  this 
day  for  (#25,000)  twenty-five  thousand  dollars,  and  mortgage  to 
remain  at  five  per  cent,  for  five  years.  Charles  H.  Davison." 
The  court  said :  "  The  memorandum  of  agreement  indicates  that 
a  part  of  the  purchase-money  was  agreed  to  be  secured  by  mort- 
gage of  the  premises  to  be  conveyed.  But  it  does  not  disclose  nor 
furnish  any  means  for  the  court  to  ascertain  what  part  or  amount 
is  to  remain  upon  mortgage,  and  what  paid  in  cash  upon  delivery 
of  the  deed.  The  Statute  of  Frauds  does  not  permit  such  a 
contract  to  he  enforced  without  a  memorandum  of  it  in  writing, 
signed  hy  the  party  to  he  charged.  The  court  cannot,  therefore, 
go  outside  of  this  writing  to  ascertain  what  the  real  agreement 
of  the  parties  was  in  this  particular.  The  writing  being  incom- 
plete in  one  of  its  essential  terms,  and  the  court  having  no  means 
to  which  it  can  lawfully  resort  to  supply  the  defect,  specific 
performance  must  fail." 

The  courts  of  the  State  of  Maine  affect  to  follow  and  approve 
of  the  confessedly  extra-judicial  reasoning  of  the  Massachusetts 
court,  in  Packard  v.  Richardson. ^  Gilligan  v.  Boardman^  is 
usually  cited  as  an  authority  for  this.^  While,  however,  it  is 
said  in  this  case  that  the  doctrine  of  the  English  courts  is,  as 
we  have  seen,  that  as  there  must  be  a  note  or  memorandum  in 
writing  of  the  whole  contract,  bargain,  or  agreement,  within  the 
fourth  or  seventeenth  section  of  the  statute,  in  order  to  bind  the 
party  whom  it  is  sought  to  charge  thereunder ;  therefore,  where 
there  is  an  omission  of  one  side  of  the  contract  in  the  note  in 
writing,  the  statute  is  not  complied  with ;  yet  Gilligan  v.  Board- 
effect  even  to  such  an  express  enactment  plaintiff  showing,  by  parol,  that  his  ser- 
as  that  of  the  Michigan  statute,  without,  vices  were  to  be  the  consideration  for  this 
in  effect,  holding  that  the  section  of  the  "promise  ;"  but  the  court  held,  notwith- 
statute  requiring  written  evidence,  in  any  standing  the  statute  provides  that  the  con- 
contract  for  the  sale  of  goods,  of  the  bar-  sideration  for  the  "  promise"  "need  not 
gain,  has  been,  in  fact,  repealed.  And  see  be  expressed  in  the  written  contract,  agree- 
Wilkinson  v.  Heavenrich,  58  Mich.  574,  ment,  or  promise,  or  in  any  note  or  memo- 
where  it  was  held  that,  where  a  promise  randum  thereof,  but  may  be  proved  by 
is  the  consideration  for  a  promise,  and  any  other  legal  evidence,"  that  the  plain- 
there  was  not  the  necessary  evidence  in  tiff  on  such  evidence  could  not  recover, 
writing  of  the  plaintiffs  promise,  the  de-  It  does,  indeed,  seem  difficult  to  frame  a 
fendants  were  not  liable  on  their  promise,  satisfactory  note  or  memorandum  of  a  con- 
within  the  statute,  although  they  had  tract,  bargain,  or  agreement,  which  does 
signed  a  note  or  memorandum  of  the  en-  not  show  a  contract,  bargain,  or  agree- 
tire  undertaking,  as  far  as  their  part  of  it  ment,  but  only  one  side  of  it. 
wa-s  concerned.     And  see  Palmer  r.  Mar-  •  ]"  Mass.  122. 

quette   &   Pacific   Rolling    Mill    Co.,   32  2  29  Me.  79. 

Mich.    274,  where  the  defendants  signed  ^  gge  3  Pars.  on  Con.  16,  n.  z  ;  Browne 

a   memorandum   in   writing,    agreeing  to     on  Stat,  of  Frauds,  §  391.     And  see  Bird 
give  the  plaintiff  a  specified  salary,  the     v.  Monroe,  66  Me.,  at  p.  342. 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM   IN   WRITING.  551 

man  is  not,  itself,  like  Packard  v.  E,ichardson,i  a  very  clear  au- 
thority on  the  question. 

In  Gilligan  v.  Boardman,  the  holder  of  the  promissory  note  of  a 
third  person  sold  it,  with  a  verbal  guaranty  of  its  payment,  and 
the  court  held,  not  only  that,  as  the  guaranty  was  made  at  the 
same  time  with  the  principal  contract,  there  was  a  sufficient  con- 
sideration for  the  guaranty,  —  the  consideration  of  the  principal 
contract  being  a  sufficient  consideration  for  the  guaranty  ;2  but 
that,  it  was  not  the  note  alone,  but  the  note  with  the  guaranty, 
which  constituted  the  consideration  of  purchase  by  tlie  plaintiffs. 
Then,  on  the  doctrine  established  in  England  and  in  this  country, 
that  where  there  is  a  new  consideration  of  benefit  or  harm  moving 
between  the  newly  contracting  parties,  the  contract  is  an  original, 
and  not  a  collateral  one ;  therefore,  according  to  the  holding  in 
Gilligan  v.  Boardman,^  itself,  that  case  was  not  within  the  Stat- 
ute of  Frauds. 

The  first  case  on  the  subject  we  find  decided  in  the  State  of 
Maine  does,  in  fact,  we  think,  follow  the  sound  decisions  of  the 
English  courts  in  holding  that  the  writing  signed  by  the  party  to 
be  charged  "  should  contain  the  whole  agreement^''  "  so  far  as  it  is 
intended  to  affect  the  parti/  to  be  charged.''^  * 

Freeport  v.  Bartol^  was  the  case  of  a  sale  of  church  pews 
(made  real  estate  by  statute  in  Maine),  within  the  equivalent  of 
the  fourth  section  of  the  English  Statute  of  Frauds.  The  defend- 
ant signed  memoranda  showing  the  purchase  by  him  of  two  spe- 
cific pews.  But  it  was  held,  that,  as  there  was  another  writing, 
showing  the  terms  of  sale,  not  signed  by  the  defendant,  nor  con- 
nected by  any  written  evidence  witii  the  writings  signed  by  him, 
the  statute  was  not  satisfied,  Here,  the  price  and  terms  were,  in 
effect,  the  consideration  for  the  defendant's  promise  ;^and  although 
the  price  appeared  in  the  memoranda,  signed  by  the  defendant, 
together  with  the  subject-matter  of  the  sale,  it  was  held,  that,  as 
the  whole  terms  did  not  appear  in  the  writing  signed  by  the  de- 
fendant, the  writing  did  not  satisfy  the  statute.'^     However,    in 

^  17  Mass.  122.  for  want  of  mutuality,  the  plaintiffs  not 

2  Huntress  v.  Patten,  20  Me.  28.  having  signed   the   writing.      The   court 

^  29  Me.  79.  considered  it  unnecessary  to  c'onsi(h'r  this 

*  Freeport  v.  Bartol,  3  Me,  340,  at  point,  as  they  held,  althougli  the  subject- 
p.  345.  matter  was  sufficiently  described,  and  the 

^  3  Me.  340.  price  stated  in  the  writing,  signed  by  the 

*  See  the  preceding  case  stated,  in  the  defendant,  that  all  tlie  terms  affecting 
Supreme  Court  in  Maine,  of  Gilligan  v.  the  party  to  be  cliarged  must  appear  by  the 
Boardman,  29  Me.  79,  where  it  was  lield  writing,  signed  by  him  ;  ergo,  tliat  the 
that  the  transfer  of  a  promissory  note  and  consideration  must  appear  in  and  by 
a  guarantee  of  its  payment  were  both  the  the  writing.  The  court  said,  very  much 
consideration  for  the  j)urchase  of  the  note,  in  the  language  of  the   English   courts: 

^  It  was  strongly  contended  in  tliis  case  "  Tlie  defendant  signed  a  ]iaper,  a  copy  of 
that  the  contract  could  not  be  enforced     which  makes  a  part  of  this  case  ;  but  that 


552 


COMMENTARIES  ON    SALES. 


[book  IV. 


Levy  V.  Merrill,^  and  again  in  King  v.  Upton,^  it  was  held,  in  the 
case  of  the  promise  to  pay  the  debt  of  another,  that  the  consid- 
eration for  tiie  collateral  undertaking,^  to  satisfy  the  Statute  of 


paper  pi'oves  no  agreement,  sets  forth  no 
terms  or  comlitioas,  and  is  altogether  de- 
fective as  evidence  of  a  contract.  It  is  in 
proof  that  there  did  exist,  at  the  time  of 
the  defendant's  subscription,  a  paper,  now 
lost,  in  which  the  terms  and  conditions  of 
sale  proposed  by  the  plaintiffs  were  clearly 
and  distinctly  set  forth  ;  but  the  paper 
signed  and  produced  has  no  reference  to 
the  paper  lost.  Its  connection  with  it, 
therefore,  can  only  be  shown  by  parol 
evidence,  which,  we  are  clearly  of  opinion, 
is  inadmissible  under  the  statute.  The 
instrument  signed,  or  others  to  which  it 
refers,  and  which  are  thereby  made  a  part 
of  it,  should  contain  the  whole  agreement  ; 
at  least,  so  far  as  it  is  intended  to  affect 
the  party  to  be  charged.  Tlie  admission 
of  parol  testimony  to  make  out  and  com- 
plete such  agreement  would  defeat  the  ob- 
ject of  the  statute,  which  was  intended,  by 
the  exclusion  of  testimony  of  this  descrip- 
tion, to  lessen  the  facilities  as  well  as 
the  temptation  for  the  commission  of 
fraud  and  perjury."  This  we  deem  in 
direct  antagonism  to  the  doctrine  of  those 
cases  which  hold  that  the  whole  of  the 
agreement,  outside  of  the  question  of  mu- 
tuality, need  not  appear  in  the  written 
note  or  meuiorandum  which  the  statute 
requires,  of  the  contract,  bargain,  or  agree- 
ment, i.e.,  of  the  whole  of  the  contract, 
bargain,  or  agreement,  outside  of  the  mu- 
tuality. In  Freeport  v.  Bartol,  3  Me. 
340,  345,  the  case  of  Boydell  v.  Drum- 
mond,  11  Ves.  142,  147,  was  approved  and 
followed,  in  which  latter  case  the  defend- 
ant had  suljscribed  a  memorandum  in 
writing  for  the  purchase  of  the  subject- 
matter  of  the  contract,  but  it  was  con- 
tended that  "  the  whole  contract  not  hav- 
ing been  reduced  to  writing,  and  signed 
by  the  parties,  etc,"  it  was  void  within  the 
Statute  of  Frauds.     And  so  it  was  held. 

1  4  Me.  180,  189. 

2  4  Me.  387. 

8  It  will  be  noticed  that  the  holding  in 
Levy  V.  Merrill,  4  Me.  130,  and  in  King 
V.  Upton,  4  Me.  387,  only  goes  the  length 
of  holding,  not  that  the  consideration  for 
none  of  the  bargains,  contracts,  or  agree- 
ments, required  by  the  4th  or  17th  sec- 
tion of  the  English  statute  of  frauds, 
need  appear  by  the  writing,  but  only  that 
the  consideration  for  the  collateral  under- 
taking to  pay  the  debt  of  another  need 
not  so  appear.  It  is,  too,  upon  this 
clause  of  the  4th  section  that  Packard  v. 
Richardson,  17  Mass.  122,  is  purported  to 
be  decided.     \n  Ex  parte  Minet,  14  Ves. 


189,  Lord  Eldon,  too,  treated  this  clause 
of' the  statute  relating  to  the  special  prom- 
ise to  pay  the  debt  of  another  as  being 
exceptional,  on  the  ground  that  "the 
undertaking  of  one  man  for  the  debt  of 
another  does  not  require  a  consideration 
moving  between  them  ;"  i.  c.,  between  the 
promisor  and  promisee.  But,  notwith- 
standing this,  the  learned  Lord  Chancellor 
last  sight  of  the  fact  that  a  special  promise 
to  pay  the  debt  of  another,  like  any  other 
contract,  bargain,  or  agreement,  is  yet 
invalid  without  a  consideration  to  sustain 
it.  And,  although  such  consideration  may 
be  anything  of  detriment  to  the  promisee, 
as  well  as  it  may  be  anything  of  benefit 
to  the  promisor,  if  the  effect  of  the  stat- 
ute is  that  the  whole  contract  involved 
in  the  s}5ecial  promise  has  to  a]>pear  in 
the  writing,  as  well  as  the  contracts,  sales, 
or  agreements  otherwise  named  in  the  4th 
section,  or  the  contracts  or  bargains 
named  in  the  17th  section,  then  it  is 
clear  that  the  consideration  has  to  appear 
in  the  writing  as  much  under  one  of  the 
clauses  of  the  4th  section  as  under  either 
of  the  others.  See  the  subject  ably  con- 
sidered by  Abbott,  C.  J.,  in  Sannders  v. 
Wakefield,  4  B.  &  Aid.  594,  599,  from 
whose  masterly  judgment  on  the  subject 
we  have  fully  quoted,  ante,  517,  n.  1.  It 
will  be  noticed  that  the  amendment  to 
the  English  statute  of  frauds  by  the 
Mercantile  Law  Amendment  Act,  19  &  20 
Vic.  c.  97,  providing  that  the  considera- 
tion for  the  "  promise  "  "  nee<l  not  appear 
in  writing,  or  by  necessary  inference  from 
a  written  document,"  only  goes  to  the 
clause  of  the  4th  section  of  the  statute  of 
frauds  relating  to  the  special  promise  to 
pay  the  debt  of  another.  And,  as  we 
have  pointed  out  supra,  there  might  be 
grounds  for  sustaining  even  what  we  think 
are  the  badly  reasoned  cases  of  Packard  v. 
Richardson,  17  Mass.  122  :  Levy  w.  Mer- 
rill, 4  Me.  182  ;  King  v.  Upton,  4  Me. 
387  ;  ami  analogous  cases,  without  at  all 
justifying  the  view  that,  therefore,  a  note 
or  memorandum  in  writing  under  other 
clauses  of  the  4th  section,  of  contracts, 
sales,  or  agreements  ;  or,  under  the  17th, 
of  contracts  or  bargains,  would  be  good, 
which  did  not,  directl}'  or  by  fair  infer- 
ence, show  the  entire  contract  ;  which, 
of  course,  it  could  not  do  if  it  omitted 
any  of  the  essential  terms  which  went  to, 
or  were  a  part  or  the  whole  of  that  whicli 
is  absolutely  necessary  to  constitute  a  con- 
tract, bargain,  sale,  or  agreement,  —  the 
consideration. 


PART    Vlir.]         THE   NOTE    OR    MEMORANDUM   IN   WRITING. 


553 


Frauds,  does  not  require  to  appear  in  the  note  or  memorandum  in 
writing,  signed  by  the  party  to  be  charged. 

Levy  V.  Merrill  ^  and  King  v.  Upton  ^  rest  on  Packard  v.  Rich- 
ardson,^ which  case,  in  its  turn,  rests  largely  on  the  views  ex- 
pressed by  Lord  Eldon  in  Ux  parte  Minet,*  and  in  Ex  parte 
Gardom  ;  ^  both  of  which  cases  were  undertakings  to  pay  the  debt 
of  another.  But,  as  is  well  pointed  out  in  Saunders  v.  Wakefield,'' 
in  each  of  these  cases  there  was  a  memorandum  in  writing  signed 
by  the  party  to  be  charged,  from  which,  by  fair  inference,  a  con- 
sideration did  appear  in  the  writing.  In  Ex  parte  Minet,^  there 
was  the  consideration  of  future  advances  to  sustain  the  promise, 
and  in  Ux  parte  Gardom,^  future  supplies  of  goods.^ 


i  4  Me.  180,  189. 
2  4  Me.  387. 
8  17  Mass.  122. 
*  14  Ves.  189. 

5  15  Ves.  286. 

6  4  B.  &  Aid.  at  p.  597. 

7  14  Ves.  189. 

8  15  Ves.  286. 

^  There  is  a  striking  similarity  between 
the  guaranties  in  these  cases  and  that  in 
Stadt  V.  Lill,  9  East,  348,  where  the 
court,  of  which  Lord  Elleuborough  was 
chief  justice,  and  sitting  in  the  case,  and 
which  had  decided  Wain  v.  Warlters,  5 
East,  10,  and  Egerton  v.  Mathews,  6  East, 
307,  held  that  the  guarantee  sufficiently 
showed  the  consideration  to  satisfy  the 
statute.  The  guaranties  in  Stadt  v.  Lill, 
9  East,  348,  and  in  Ex  parte  Gardom,  15 
Ves.  286,  were  virtually  identical.  In  the 
former  tlie  guarantee  was,  "  I  guarantee 
the  payment  of  any  goods  which  J.  Stadt 
delivers  to  J.  Nichols ; "  in  the  latter, 
"  We  agree  and  engage  to  guarantee  for 
what  twist  Thomas  Tapp  may  purchase 
from  you  from  the  28th  ult.  to  the  1st  of 
January."  The  latter  guarantee,  in  fact 
more  clearly,  in  the  use  of  the  term  "pur- 
chase," instead  of  "deliver,"  in  Stadt  w. 
Lill,  9  East,  348,  showed  the  contract  of 
sale  for  wliich  the  guarantee  was  given. 
Stadt  V.  Lill,  9  East,  348,  decided  by  the 
Court  of  Queen's  Bench,  in  which  Lord 
Ellenborough  sat  as  chief  justice,  and  Ex 
parte  Gardom,  15  Ves.  286,  decided  by  Lord 
Eldon,  were  both  decided  A.  n.  1808,  and 
were  theictbrc  virtually  concurrent,  and  are 
in  perfect  harmony  with  each  other.  True, 
in  Ex  p'ir/c  GardoiVi,  15  Ves.  286,  Lord 
Eldon  said  tliat  he  had  always  taken  the 
law  to  he  clear  until  Wain  v.  Warlters, 
5  East,  10,  was  cited,  that,  if  a  man 
agreed  in  writing  to  pay  the  debt  of  an- 
other, it  was  not  necessary  tliat  the  con- 
sideration sliould  afipearon  the  fac(!  of  the 
writing.  But  he  yielded  to  the  decision 
of  that   case,  and  admitted  that  it  had 


"  determined  two  points,  —  first,  that  a 
consideration  is  necessary  ;  secondly,  that 
it  must  appear  upon  the  ivritmg."  But, 
further,  it  seems  that  Lord  Eldon  did  not 
there  clearly  distinguish  between  the  con- 
sideration (the  future  sales  of  the  goods  to 
Tapp)  and  the  mutuality  (the  plaintiff's 
agreement  to  sell  the  goods  to  Tajip)  ;  as 
he  says,  "  It  is  exceedingly  difficult  to 
distinguish  this  from  that  case  [in  Wain 
V.  Warlters,  5  East,  10,  there  is  the  mere 
promise,  for  which  no  consideration  what- 
ever ajipears  in  the  writing] ;  as  for  this 
engagement  to  be  answerable  for  any  twist 
which  the  petitioners  should  sujiply  to  an- 
other person,  there  is  no  consideiation  ; 
unless  as  it  may  be  proved  by  parol  evi- 
dence that  they  did  agree  to  furnish  twist." 
But,  in  Stadt  v.  Lill,  9  East,  348,  where 
Lord  Ellenborough  seemed  to  have  been 
disabused  of  the  view  which  he  too  seemed 
to  have  had  in  Wain  v.  Warlters,  5  East, 
10,  and  at  oiisi  j^rius,  in  Egerton  v.  Jla- 
thews,  6  East,  307,  that  the  consideration 
and  the  mutuality  were  the  same,  he  said, 
with  reference  to  the  consideration,  wliich 
was  as  applicable  to  Ex  parte  ]\linet,  14 
Ves.  189,  and  to  Ex  pa7ie  Gardom,  15 
Ves.  286,  as  to  Stadt  v.  Lill,  9  East,  848, 
that  the  stipulation  as  to  the,  delivery  of 
the  goods  to  the  third  j)arty  was  a  con- 
sideration appearing  on  the  face  of  the 
writing,  and  when  the  delivery  took  place 
the  consideration  attached.  Lord  Ellen- 
borough so  directed  the  jury,  and  in  so 
doing  was  sustained  by  the  full  court. 
And  in  Ex  parte  Gardom,  15  Ves.  286, 
Lord  Eldon,  while  holding  that  the 
"agreement,"  as  an  agreement  to  pay  the 
debt  of  another,  was  "  a7i  agreement  with- 
in the  meaning  of  the  statute,"  must  have 
also  held  (see]).  289)  that  the  considera- 
tion did  appear  by  the  writing,  as  he  held 
that  the  guarantors  were  bounil  by  their 
guaranty.  In  one  of  the  very  admirable 
notes  of  the  late  Mr.  Sumner  to  Vesey's 
reports,  it  is  correctly  said  :  "In  Ex  parte 


554 


COMMENTARIES    ON    SALES. 


[book  IV. 


By  the  statutes  of  Maine  ^  it  is  enacted,  that  the  consideration 
for  the  special  promises,  contracts,  and  agreements,  named  in  the 
first  section  (which  includes  the  clauses  in  the  fourth  section  of 
29  Car.  2,  c.  3)  need  not  be  expressed  in  the  writing,  but  may  be 
proved  otherwise  ;2  leaving  the  fourth  section,  which  is  similar  to 
the  seventeenth  section  of  the  English  act,  without  the  addition 
of  any  such  clause.  But,  in  Bird  v.  Munroe,^  it  is  stated  generally, 
independent  of  the  statute,  as  it  is  said  in  Gilligan  v.  Boardman,'* 
that,  in  Maine,  "  the  consideration  for  the  promise  is  not  required 
to  be  expressed  in  writing."  Notwithstanding  this,  however,  we 
think  a  critical  examination  of  the  decisions  in  Maine  will  show, 
as  they  do  in  Massachusetts,  that  they  do  not  really  mean  this ; 
but,  rather,  that  they  are  confounding  the  mutuality  of  a  contract 
with  the  consideration.^    And,  in  fact,  taking  all  their  decisions 


Gardom,  15  Ves.  287,  it  was  held  that  a 
sufficient  consideration  did  appear."  Al- 
togetlier,  then,  we  are  clearly  of  the  opinion 
that  the  reasoning  (?)  in  such  cases  as 
Packard  v.  Richardson,  17  Mass.  122, 
Levy  V.  Merrill,  4  Me.  180,  and  King  v. 
Upton,  4  Me.  387,  is  unsupported,  either 
on  principle  or  authority. 

1  R.  S.  of  1871,  p.  786  ;  R.  S.  of  1883, 
p.  838  ;   c.  Ill,  §§  1,  4. 

2  It  is  incorrectly  stated  in  Williams  v. 
Robinson,  73  Me.  at  p.  192,  that,  although 
this  provision  is  contained  in  the  R.  S.  of 
Maine  of  1840,  c.  136,  §  2,  and  in  the 
R.  S.  of  Maine  of  1857,  c.  Ill,  §  2,  it  wa-s 
repealed,  and  was  not  included  in  the  R.  S. 
of  1871.  It  is,  however,  included  both 
in  the  revisions  of  1871  and  1883,  but 
is  made  a  part  of  the  first  section  in  each 
of  these  revisions,  instead  of  being  an  in- 
dependent section  (the  second),  as  it  was 
in  the  revision  of  1857.  But  in  the  revi- 
sion of  1857,  as  in  those  of  1871  and  1883, 
it  was  only  applied  in  the  statute  to  the 
contracts,  etc.,  in  the  first  section  (the 
English  fourth),  and  not  to  those  in  the 
fourth  (the  English  seventeenth).  But 
the  question  in  Williams  v.  Robinson,  73 
Me.  186,  came  up  under  the  fourth  section 
(the  English  seventeenth)  of  the  Maine 
statute,  and  not  under  the  first  (the  Eng- 
lish fourth). 

3  66  Me.  at  p.  342. 

*  29  Me.  79. 

*  It  may  perhaps  be  necessary  to  ob- 
serve that  where  there  is  no  mutuality,  no 
aggregatio  mentiicm,  or  meeting  of  minds, 
there  is,  of  course,  no  contract  ;  and  where 
there  is  no  contract  there  are,  of  course, 
no  mutual  considerations.  But  the  con- 
sideration for  a  contract,  i.  e.,  what  one  is 
to  receive  for  that  which  he  is  to  give,  may 
appear  in  the  writing,  or  by  fair  inference 
from  it,  and  yet  the  mutuality,  which  is 


also  necessary  to  make  a  binding  contract, 
not  appear  in  or  by  the  writing.  This 
was  the  case  not  only  in  Egerton  v.  Ma- 
thews, 5  East,  10,  and  Stadt  v.  Lill,  9 
East,  348,  but  in  such  cases  as  Ex  parte 
Minet,  14  Ves.  189,  and  Ex  parte  Gardom, 
15  Ves.  287.  In  all  of  these  cases,  and  in 
innumerable  other  well-decided  cases,  the 
consideration  appeared  in  and  by  the 
writing,  or  by  fair  inference  from  it  ;  but 
the  mutuality  did  not  so  appear,  but  had 
to  be  shown  dehors  the  writing.  The 
theory  of  all  these  cases  is  that  of  the 
statute  itself,  without  the  exception  of  any 
clause  either  of  the  fourth  or  seventeenth 
section  ;  that  the  contract,  bargain,  or 
agreement  (i.  e.,  the  whole  contract,  bar- 
gain, or  agreement),  or  some  note  or  mem- 
orandum of  it  (i.  e.,  some  note  or  memo- 
randum of  the  lohole  contract,  bargain,  or 
agreement),  must  appear  in  the  writing. 
But  as  this  writing  need  only,  to  bo  bind- 
ing, be  signed  by  the  party  to  be  charged 
thereby,  it  need  not  be  signed  by  the 
other  party  to  it,  and  hence  his  assent  to 
it  —  to  make  the  necessary  mutuality  — 
may  be  shown,  as  it  could  have  been  at 
common  law  before  the  statute,  by  evi- 
dence aliunde.  Keeping  in  mind  this 
distinction,  and  the  assumed  difference  — 
outside  of  the  one  im]iroperly  treated  ex- 
ceptional case  of  a  promise  to  answer  for 
the  debt,  default,  or  miscarriage  of  an- 
other —  between  the  English  cases  and 
very  many  of  the  cases  in  Massachusetts, 
Maine,  and  in  the  other  courts  which 
have  assumed  to  follow  the  confessedly 
obiter  dicta  in  Packard  v.  Richardson,  17 
Mass,  122,  will  entirely  disa])|iear  ;  these 
latter,  as  do  the  English  cases,  in  eflFect  hold- 
ing that  all  the  terms  of  the  contract,  out- 
side of  the  matter  of  the  mutuality,  must 
appear  in  and  by  the  wiiting,  or  by  fair 
inference  from  it.     See  Bean  v.  Burbank, 


PART   Viri.]        THE   NOTE   OR   MEMORANDUM    IN    WRITING.  555 

into  consideration,  and  making  due  allowance  for  their  error  in 
elementary  law,  it  is  questionable  if  (perhaps  not  including  the 
case  which  has  to  some  extent,  under  the  Statute  of  Frauds,  been 
for  some  insufficient  reason  treated  as  exceptional, —  the  promise 
to  answer  for  the  debt,  default,  or  miscarriage  of  a  third  party) 
the  decisions  in  Massachusetts,  Maine,  and  the  other  States  which 
affect  to  follow  the  vicious  reasoning  in  Packard  v.  Richardson,^ 
in  their  repudiation  of  the  law  as  well  decided  by  Wain  v.  Warl- 
ters,2  at  all  differ  in  principle  from  the  well-decided  English  cases 
of  Egerton  v.  Mathews,^  Stadt  v.  Lill,'*  and  the  long  and  unbroken 
series  of  Englibh  cases,  which  have  followed,  approved  ana 
affirmed  the  well-decided  law  of  Wain  v.  Warlters,^  Egerton  v. 
Mathews,^  and  Stadt  v.  LillJ 

Thus,  in  Horton  v.  McCarty,^  where  the  question  came  up  under 
the  clause  relating  to  the  sale  of  lands,  after  referring  to  a  mem- 
orandum which  had  not  been  duly  signed,  which  contained  "  a 
description  of  the  premises,  the  time  and  place  of  sale,  the  name 
of  the  seller,  the  terms,  and  •  the  name  of  the  defendant  as  pur- 
chaser," as  being  "  undoubtedly  sufficient,  if  seasonably  made," 
to  charge  the  defendant,  Kent,  J.,  delivering  the  unanimous  judg- 
ment of  the  Supreme  Court  of  Maine,  says:  "A  mere  writing 
down  on  a  slip  of  paper  of  the  name  of  the  purchaser  and  the 
price,  the  paper  containing  nothing  else,  and  connected  with  no 
other  papers,  is  not  a  signing  of  a  contract,  within  the  meaning  of 
the  statute.  The  rule  of  law  has  been  sufficiently  relaxed  by  the 
decisions,  but  it  is  not  entirely  dispensed  with.  The  general  rule 
is  that  the  paper  or  book  signed  must  contain  the  essential  tertns  of 
the  contract,  with  such  a  degree  of  certainty  that  it  may  be  under- 
stood without  recourse  to  parol  testimony."  It  is  clear  that  the 
writing  of  a  name  and  a  sum  on  a  slip  of  paper,  which  contains 
no  reference  to  the  sale  and  its  terms,  or  to  the  description  of  the 
property,  is  not  sufficient :  Freeport  v.  Bartol,^  Morton  v.  Deane.^*^ 
That  the  writing  signed  by  the  party  to  be  charged  "  must  contain 
the  essential  terms  of  the  contract,"  i.  e.,  all  the  essential  terms 
of  the  contract,  is  what  the  statute  itself  requires  ;  and  this  hold- 
ing, even  in  the  State  of  Maine,  accords  with  the  unbroken  line  of 
the  English  decisions,  and  with  the  well-decided  cases  in  this 
country  in  harmony  therewith. 

16  Me.  458,  where  it  was  held  there  was  '  6  East,  307. 

no  consideration  for  want  of  mutuality  ;  *  9  East,  348. 

but   where,   had   th(!re   been    evidence  of  ^5  East,  10. 

mutuality,   the  consideration  would  have  "  6  East,  307.  v 

sufficiently  appeared  in  the  writing  .signed  ''  9  East,  348. 

by  the    party   whom   it   was    sought    to  ®  53  Me.  394. 

charge.  ^  3  Greenleaf,  340. 

1  17  Mass.  122.  w  13  Met.  35. 

2  5  East,  10. 


556  COMMENTARIES   ON   SALES.  [BOOK   IV. 

In  the  case  of  Cummings  v.  Dennett  ^  the  action  was  agamst 
the  seller  of  a  quantity  of  belting  leather  for  not  delivering  it. 
The  memorandum  of  the  contract  in  writing  showed  the  con- 
sideration as  plainly  as  in  any  of  the  English  cases  to  which  we 
have  referred ;  but,  as  in  them,  the  mutuality  did  not  appear. 
In  the  Maine  case  the  mutuality  and  the  consideration  were 
confounded.  The  note  or  memorandum  in  writing,  signed  by  the 
party  to  be  charged,  was  as  follows  :  "  I,  the  subscriber,  hereby 
agree  to  furnish  David  Cummings  with  one  hundred  and  forty 
packs  and  strips  for  belting,  to  be  delivered  in  Portland,  at  eigh- 
teen cents  per  pound,  by  the  first  day  of  December  next." 

Here,  right  on  the  face  of  the  writing,  the  consideration,  as  in 
the  English  cases,  —  the  leather  for  the  price,  the  price  for  the 
leather,  —  is  shown ;  but,  as  in  the  English  cases,  the  mutuality 
does  not  appear.  But,  as  has  been  held  in  those  cases,  that, 
under  the  statute,  can  be  shown  dehors  the  writing.  The  case  in 
Maine  is  decided  precisely  as  it  would  have  been  in  England,  or 
in  those  States  where  the  gross  elementary  mistake  of  Massa- 
chusetts, Maine,  and  a  few  other  States,  has  not  been  made,  of 
confounding  the  consideration  with  the  mutuality.  Thus  in  Cum- 
mings V.  Dennett,^  instead  of  its  being  claimed  for  the  plaintiff 
that  "  all  the  essential  terms  of  the  contract "  (outside  of  the 
mutuality,  which  the  statute,  fairly  and  universally  so  construed, 
does  not  require  to  be  evidenced  by  the  writing),  including,  of 
course,  the  mutual  considerations,  without  which  "•  a  contract " 
could  not  be  shown,  did  appear  on  the  very  face  of  the  writing ; 
it  was  contended  that  "  it  is  not  necessary  that  the  consideration 
of  an  agreement  should  be  stated  in  it  to  make  it  binding.  The 
consideration  may  be  proved  by  parol." 

So,  in  the  unanimous  judgment  of  the  court,  delivered  by  Whit- 
man, C.  J.,  the  position  is  not  taken,  as  it  should  have  been,  that 
the  consideration  is  stated  as  plainly  as  in  any  case  which,  under 
the  statute,  has  ever  been  upheld,  including  either  or  any  of  all  the 
English  cases  to  which  we  have  referred  in  this  Part,  and  that 
the  mutuality  is  not  required  to  be  shown  by  the  writing ;  they,  on 
the  other  hand,  treating  the  being  mutually  bound  by  the  contract 
as  being  absolutely  essential,  not  to  the  making  of  a  contract,  but 
to  the  showing,  independent  of  this,  that  there  is  a  consideration, 
utterly  ignore  the  admission  of  a  consideration  by  the  party  to  be 
charged,  shown  on  the  face  of  the  writing  or  by  a  fair  inference 
from  it.3     Thus  the  conclusion  is  obvious  that,  in  all  this  class  of 

1  26  Me.  397.  C.   J.,   will   make  clear   the  fallacy  into 

2  Ibid.  397,  398.  which  such  courts  as  those  of  Slassachu- 
8  The  following  language  ofWhitman,      setts,    Maine,    etc.,    have    fallen:     "The 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM   IN   WRITING. 


557 


eases,  there  is  not  a  particle  of  difference  between  the  actual  hold- 
ing of  the  courts  in  England  or  elsewhere,  which  hold  that  the 


Ijlaintiff  relies  upon  a  special  contract,  en- 
tered into  between  him  and  the  defendant, 
in  which  the  defendant  in  writing  agreed 
to  furnish  the  plaiutiti"  with  one  hundred 
backs  and  strips  for  belting,  to  be  deliv- 
ered in  Portland  by  the  first  day  of  De- 
cember then  next,  the  date  of  the  writing 
being  Sept.  6,  ISio,  at  eighteen  cents  per 
))Ound.  The  plaintiff  on  the  first  day  of 
December  following  the  date  of  the  writ- 
ing, tendered  to  the  defendant,  at  his  tan- 
nery in  Portland,  the  amount  the  articles 
would  come  to  at  the  price  agreed  upon, 
and  demanded  them  of  him  ;  to  which  he 
replied  that  he  had  not  the  leather.  He 
did  not  deny  that  he  had  made  such  an 
agreement;  or  then  pretend  that  it  was 
not  mutually  obligatory  ;  or  that  the  plain- 
tiff had  not  agreed  to  take  and  pay  for  the 
articles  ^qwn  their  being  furnished  accord- 
ing to  promise.  He  now  sets  up,  however, 
in  defence,  that  the  luritten  agreement  does 
not  show  that  the  plaintiff  did  so  agree ;  and, 
therefore,  that  there  was  no  consideration 
for  the  promise  he  had  made ;  and,  more- 
over, that  there  being  no  written  promise 
on  the  part  of  tJie  plaintiff  to  accept  and 
pay  for  the  articles,  at  the  time  specified, 
and,  therefore,  no  tnutuality  of  obligation, 
the  statute  of  frauds  will  prevent  his  being 
liable  in  this  action. 

"  If  the  defendant's  promise  can  be  re- 
garded as  having  been  made  without  con- 
sideration, it  will  be  immaterial  to  inquire 
whether  it  is  within  the  statute  of  frauds 
or  not.  It  is  not  essential,  at  common 
law,  that  the  consideration  for  a  promise 
in  writing  should  appear  in  the  writing  it- 
self. Bean  v.  Burbank,  16  Me.  460.  To 
ascertain  whether  there  was  a  good  consid- 
eration, not  only  the  writing,  but  all  the 
circumstances  connected  with  it  must  be 
taken  into  view. 

"  In  the  case  before  us,  the.  writing 
contains  the  promise  of  one  party  in  very 
explicit  terms ;  and  the  question  is,  whether 
a  corresponding  promise  [i.  e.  whether,  not 
that  for  which  the  promise  is  made  is  as- 
certainable, but  whether  the  mutuality 
appears]  is  or  is  not  ascertainable,  as  hav- 
ing been  mnde  by  the  otJier  party,  and 
therehj/  constituting  a  good  consideration 
for  the  other.  The  agreement  by  the  de- 
fendant was  absolute  to  furnish,  at  a  cer- 
tain time,  place,  and  price,  certain  articles 
[thus,  of  course,  "all  the  essential  terms 
of  the  contract "  being  shown].  Tha 
agreement  was  in  writing,  which  was  taken 
and  carried  away  and  held  liy  the  plaintiff. 
The  defendant,  it  would  seem,  was  a  man- 
ufacturer of  such  articles,  as  the  tender  was 
made  at  his  tannery,  and  he  is  called  in 


the  writ,  and  without  objection  by  him,  a 
tanner.  They  were  to  be  furnished  at  a 
future  day  ;  and,  therefore,  may  be  be- 
lieved not  to  have  been  on  hand  at  the 
time  of  the  contract.  It  did  not  occur  to 
the  defendant  at  the  time  the  tender  was 
made,  to  pretend,  that  there  had  not  been  a 
mutual  and  obligatory  contract  [mutuality 
again  !]  by  one  party  to  furnish,  and  by 
the  other  to  pay  for  the  articles.  The  ten- 
der was  made  for  articles  the  defendant 
'  agreed  to  have  done  '  for  the  plaintifi' ; 
and  the  defendant  did  not  deny  that  he 
had  so  agreed.  Here,  then,  there  was  at 
least  matter  for  the  consideration  of  the 
jury,  from  ichich  to  find  a  mutual  and  oh- 
iigatory  contract  between  tlis  parties. 

"If  the  application  was  to  the  de- 
fendant for  goods  on  hand,  then  it  will, 
perhaps,  become  important  to  ascertain 
whether  the  writing  in  question  was  in 
conformity  to  the  requirements  of  the 
statute.  The  promise,  on  the  part  of  the 
defendant,  was  quite. intelligible,  and  the 
consideration  expected  for  the  promise  is 
stated.  [Mark  this  important  admission, 
which  is  really  an  assent  to  the  correctness 
of  the  English  decisions,  from  which  the 
courts  in  Massachusetts,  Maine,  etc.,  affect 
to  differ.]  And  we  have  before  seen,  that 
a  jury  might  well  find,  from  the  circum- 
stances, that  the  plaintiff  promised  to  take 
and  pay  for  the  articles  to  be  furnished  ; 
and  we  have  before  seen  that  the  law  does 
not  require  that  tlie  party  seeking  the  ful- 
filment of  a  promise  in  writing,  should 
show  that  the  engagement  on  his  part  [i.  e. 
to  show  the  miituiility]  forming  the  consid- 
eration [ !  ]  was  in  writing.  And  to  this 
point,  see  Lunt  v.  Pad(!lford,  10  Mass. 
230  ;  Train  v.  Gold,  5  Pick.  380." 

The  mistake  made  in  all  this,  as  in  the 
other  cases  in  Massachusetts,  ilaiiie,  etc., 
is  in  treating  the  consideration  as  though 
it  were  itself  that  of  which  it  is  but  an  in- 
gredient ;  the  contract  or  agreement.  The 
definition  of  a  contract  is  :  An  agreement 
between  two  or  more  {)arties  to  do  or  not 
to  do  some  particular  thing.  But  the  con- 
sideration for  the  contract  or  agreement  i.s 
not  the  agreement  itscilf,  but  that  wliich 
one  party  to  the  agreement  icceives  or  is 
to  receive,  or  does  or  is  to  do,  for  that 
which  he  gives  or  is  to  give,  or  wiiich  is 
done  or  is  to  be  done.  The  mutuality 
makes  the  agreement,  of  wliich  the  con.tid- 
eration  is  but  an  ingreilieiit.  And  in  the 
exceptional  case  of  that  kind  of  n  contrnrt 
called  a  gift,  not  even  tliat.  Tlie  question 
under  tiie  statute  is  wlicdher  the  consider- 
ation, that  is,  wliat  the  one  gets  for  that 
which  the  other  gives  —  the  quid  }>ro  fuo 


558  COMMENTARIES   ON   SALES.  [BOOK   IV. 

consideration  must  appear  in  and  by  the  writing,  signed  by  the 
party  to  be  cliarged,  but  that  the  mutuality  may  be  shown  by 
evidence  aliunde,  and  the  holding  of  such  courts  as  those  of 
Massachusetts  and  Maine,  that  "  all  the  essential  elements  of  the 
contract,"  including,  of  course,  the  consideration,  must  appear  in 
the  writing,  but  that  the  mutuality  —  "a  mutual  and  obligatory 
contract  between  the  parties  "  —  ivhich  they  call  the  considera- 
tion, may,  in  the  language  of  their  statutes,  where  consideration 
is  also,  in  effect,  treated  as  mutuality,  "  be  proved  otherwise." 
This  being  so  in  all  such  cases  as  Cummings  v.  Dennett,^  is 
conclusive  also  to  show  that,  in  all  such  cases  as  Packard  v. 
Richardson,^  the  promise  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another,  should  not  be  treated  as  exceptional ;  but 
that  the  statute  as  much  requires  the  consideration  to  appear  in 
and  by  the  writing,  or  by  fair  inference  from  it,  as  it  did  in  Stadt  v. 
Lill,^  in  all  such  cases,  as  in  any  others  under  either  the  fourth  or 
seventeenth  seection  of  the  statute.  On  principle,  as  well  as  on 
sound  authority,  in  all  the  cases  under  the  fourth  or  seventeenth 
sections  of  the  statute,  the  consideration  must  appear  in  and  hy  the 
writing,  or  hy  fair  inference  from  it,  signed  by  the  party  to  be 
charged  ;  but  in  none  of  them  need  the  mutuality  so  appear,  but 
"  may  be  proved  otherwise."  This,  we  claim,  is  the  basilar  prin- 
ciple of  all  these  cases  ;  and  the  cases  not  decided  in  harmony 
with  it  are  not  well  decided,  and  hence  are  not  law  in  Maine, 
Massachusetts,  or  elsewhere. 

In  Washington  Ice  Co.  v.  Webster,*  the  subject-matter  of  the 
contract,  ice,  appeared  in  the  writing  which  was  signed  by  the 
party  whom  it  was  sought  to  charge,  but  the  consideration  did 
not  appear  in  the  writing  or  by  fair  inference  from  it.  The  court 
held  that  "  the  contract  of  sale,  to  be  binding  by  the  Statute  of 
Frauds,  must  he  in  writing,""  and  that  a  writing  that  did  "  not  de- 
scribe the  price  or  the  quantity  of  the  goods  to  be  sold,  nor  contain 
any  of  the  elements  of  a  sale,"  did  not  satisfy  the  statute.  This 
case,  in  effect,  virtually  holds  the  doctrine  of  the  previous  Maine 
case,°  as  well  as  of  all  the  English  and  other  well-decided  cases 
on  the  question,  that  all  the  requisites  of  the  contract,  except 
the  mutuality,  must  appear  in  the  writing  or  by  fair  inference 
from  it.^ 

—  sufficiently  appears  in  tlie  vn-iting  or  by          6  The  Maine  Supreme  Court,  Appleton, 

fair  inference  from  it;    not  whetiier  the     C.  J.,  delivering  their  unanimous  judg:ment, 

mutuality  also  so  appears.  say  :    "  T/ie  contract  of  sale,  to  be  binding 

1  26  Me.  397.  by  the  statute  of  frauds,  mtist  he  in  writing. 

2  17  Mass.  122.  Thus  far,  in  the  process  of  the  negotiation 
8  9  East,  348.  between  the  parties,  there  has  been  no  note 
*  62  Me.  341.  or  memorandum  setting  forth  the  terms  of 

♦  Horton  v.  McCarty,  53  Me.  394.  any  contract  which  has  been  signed  by  the 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM   IN  WRITING.  559 

The  latest  case  (a.  d.  1882)  in  the  Supreme  Court  of  Maine  ^  is 
another  admirable  case  to  show  the  confusion  of  those  courts, 
such  as  the  Supreme  Courts  of  Massachusetts,  Maine,  etc.,  which 
affect  to  hold  that  in  no  case  under  such  sections  as  those  of  tlie 
fourth  or  seventeenth  section  of  the  29  Car.  2,  c.  3,  is  it  necessary 
that  the  consideration  should  appear  in  the  writing  or  by  reason- 
able inference  from  it. 

In  this  case  the  memorandum  in  writing  of  the  contract,  signed 
by  the  defendant,  whom  it  was  sought  to  charge  thereby,  was 
as  follows  :  "  I  hereby  agree  to  furnish  M.  F.  Williams  of  New 
Haven,  eight  hundred  to  one  thousand  tons  of  ice,  delivered  on 
board  vessels  at  Augusta,  Maine,  properly  packed  for  a  voyage  to 
New  Haven, /or  the  sum  of  hvo  dollar's  a  ton." 

Although  right  on  the  face  of  this  memorandum  the  contract  to 
deliver  800  to  1000  tons  of  ice  "/or  the  sum  of  two  dollars  a  ton" 
was  shown,  it  was  claimed,  on  the  trial,  that  the  note  in  writing 
of  the  contract  showed  no  consideration.  And  this  was,  in  effect, 
conceded,  not  only  by  the  presiding  judge  at  the  trial,  but  by  the 
unanimous  judgment  of  the  Supreme  Court  of  Maine,  to  be  the 
case.  And  yet,  while  so  affecting  to  hold,  they,  on  the  other 
hand,  expressly  held  the  very  reverse,  viz.,  that  "  In  order  that 
the  court  may  ascertain  the  rights  of  the  parties  from  the  writing 
itself,  without  resort  to  oral  testimony,  to  satisfy  the  statute,  the 
memorandum  must  contain  within  itself,  or  by  some  reference  to 
other  written  evidence,  the  names  of  the  vendor  and  vendee,  and 
all  the  essential  terms  and  conditions  of  the  contract,  expressed 
with  such  reasonable  certainty  as  may  be  understood  from  the 
memorandum  and  other  written  evidence  referred  to,  if  any,  with- 
out any  aid  from  parol  testimony."  ^  Of  course,  it  is  ridiculous  to 
hold,  as  they  do,  that  there  must  be  a  complete  memorandum  of 

party  to  be  charged  thereby."     Washing-  contract,  so   that  the  court  can  ascertain 

ton  Ice  Co.  v.  Webster,  62  Me.  at  p.  358.  the  rights  of  the  parties  tioin  the  writing 

And  if  "the  terms  of  the  contract"  are  itself,  without  resorting  to  oral  testinion}-." 

required  to  be  set  forth,  very  clearly  they  In  this  case,  which  came  under  the  section 

are  not  set  forth  where  one  side  of  such  of  the  statute  similar  to  the  4th  section  of 

terms  —  the   consideration   on  which   the  the  English  act,  and  the  clause  of  it  relat- 

contract  is  based  —  is  entirely  ignored.  ing   to   the   sale   of  land  ;   although   the 

1  Williams  v.  Robinson,  73  Me.  186.  names  of  the  ])arties  were  stated  in  tlie 

2  For  this  they  cite  O'Donnell  v.  Lee-  writing,  the  subject-matter  of  the  sale, 
man,  43  Me.  158  ;  Jenness  v.  Mt.  H.  I.  and  tlie  price  to  be  paid,  yet  as  all  the 
Co.,  53  Me.  20;  Horton  v.  McCarty,  53  terms  of  sale  did  not  appear  in  the  writ- 
Me.  394,  396  ;  Washington  Ice  Co.  v.  ing,  it  was  held  that  tlie  statute  had  not 
Webster,  62  Me.  341.  They  also  cite  been  complied  with,  notwithstanding  the 
Riley  V.  Farnsworth,  116  Mass.  223,  where  express  statutory  provision  that  the  con- 
the  principle  is  also  correctly  laid  down,  si<leration,  whicli  really  means  all  tliat  is 
although  not  affected  to  be  acted  on  by  to  be  done  by  oik;  for  that  wliicli  is  to  b(; 
the  Supreme  Courts  of  Massachusetts,  done  by  the  otlier,  need  not,  under  tlie 
Maine,  etc.,  tliat  "the  memorandum  in  Massachusetts  statute  appenr  in  the  writ- 
writing  recfuireil  by  the  statute  of  frauds  ing,  but  may  be  otherwise  proved. 
mvist  contain  all  the  essential  terms  of  the 


560 


COMMENTARIES   ON   SALES. 


[book  IV. 


all  the  essential  terms  of  a  contract,  and  yet  that  one-half  of  such 
essential  terms  may  be  omitted.  They  simply  hold,  in  effect,  that 
all  the  essential  terms  of  the  contract,  including  the  consideration, 
must  appear  by  the  writing ;  but  that  the  mutuality,  or,  as  they 
also  call  it,  "  the  acceptance  of  the  contract,"  miscalling  this  also 
the  consideration,  need  not  appear  by  the  writing.  And  so,  in 
Williams  v.  Robinson,^  the  term  "consideration"  in  the  statute  is 
simply,  in  effect,  construed  as  "  mutuality,"  or  "  the  acceptance  of 
the  contract,"  by  the  party  to  the  contract,  who  has  not  signed 
the  writing  by  which  the  other  party  to  it  is  bound,  within  the 
statute.^ 


1  73  Me.  186. 

2  As  a  fitting  close  to  this  class  of 
cases,  to  show  how  thoroughly  the  courts 
of  the  State  of  Maine,  as  in  Massachusetts, 
confounded  the  consideration  with  the 
mutuality,  or  "  the  acceptance  of  the  con- 
tract," we  quote  from  the  judgment  of  the 
court  below,  which  was  sustained  by 
the  full  court  ;  thus  :  "  The  defendant 
claims  that  the  memorandum  is  not  valid 
and  sufficient  within  the  meaning  of  the 
statute,  because  it  does  not  comprise,  he 
says,  all  of  the  essential  elements  and  terms 
of  the  contract  which  was,  in  fact,  entered 
into  by  these  parties.  In  order  that  a  iiote 
or  memorandnm  should  be  sufficient  and 
valid  unthin  the  meaning  of  this  statute,  it 
is  requisite  that  it  should  contain  all  of 
the  essential  elements  and  terms  of  the  con- 
tract entei'ed  into  by  the  parties.  And  parol 
evidence,  as  has  been  ruled  in  this  case, 
may  be  received,  that  is,  the  statements  of 
the  parties  or  their  witnesses  who  were 
present  at  the  time  the  contract  was  made, 
may  be  received  to  show  that  there  was 
some  other  element  in  the  contract,  some 
other  proposition  or  condition  insisted 
upon  by  the  parties,  by  the  one  side  or  the 
other,  as  essential,  which  was  not,  in  fact, 
incorporated  into  the  memorandum,  and 
in  such  case  the  memorandum  \oould  not 
be  valid  and  sufficient  within  the  statute  of 
frauds,  and  the  -party  could  not  be  charged 
by  it.  [That  is,  that  the  entire  contract, 
with  all  its  essential  elements,  constituting 
the  reciprocal  considerations,  must  appear 
in  the  writing,  or  the  statute  is  not  satis- 
fied. And  yet  fancy  its  being  laid  down 
in  this  same  case,  as  it  was,  that  the  con- 
sideration did  not  appear  in'  the  writing, 
and  that  it  was  not  necessary  that  it  should 
do  so  !]  It  is  claimed  here,  on  the  part  of 
the  defendant,  in  the  first  place,  that  this 
is  not  sufficient,  because,  it  is  said,  there 
was  some  discussion,  —  there  was  an  agree- 
ment, in  fact,  it  is  claimed,  between  these 
parties,  not  appearing  in  this  memoran- 
dum, in  reference  to  the  mode  and  time  of 


payment.     [And  which,  of  course,  would 
have  been  a  part  of  the  consideration.] 

"  Now,  if  you  find,  as  matter  of  fact, 
under  the  evidence  in  this  case,  that  there 
was  an  agreement  between  these  parties  in 
reference  to  the  mode  and  time  of  pay- 
ment, essentially  and  materially  different 
from  this  presumption  of  law  which  I  have 
explained  to  you  ;  that  that  was  insisted 
upon  by  the  defendant  o-s  an  essential  ele- 
ment of  the  contract,  and  made  a  condition 
of  the  contract ;  then  that  not  appearing  in 
this  memorandum,  I  instruct  you,  as  mat- 
ter of  law,  that  the,  memorandtnn  would 
not  be  sufficient,  and  tlie  defendant  could 
not  be  charged  by  it.  [That  is,  that  unless 
the  consideration  has  been  fully  and  cor- 
rectly stated,  the  essential  elements  of  the 
contract  do  not  appear  in  the  writing,  and 
the  statute  is  not  satisfied.  What  can  be 
plainer?]  And  )'ou  will  consider  what 
the  evidence  was  in  relation  to  that  point ; 
whether  the  agreement,  if  any  agreement 
was  made  by  the  minds  of  these  two  par- 
ties mutually  meeting  upon  any  proposi- 
tion, definitely,  in  reference  to  the  mode 
and  time  of  payment,  was  any  different  in 
effect  [i.  e.,  has  the  consideration  been  in- 
sufficiently or  incorrectly  stated  in  the 
memorandum  ?]  from  this  presumption  of 
law,  namely,  cash  on  delivery,  to  which  I 
.have  called  your  attention.  And  tiiat  does 
not  mean  delivery'  at  West  Haven,  but 
means  delivery  according  to  the  defend- 
ant's own  proposition,  '  on  board  vessel  at 
Augusta.'  If,  therefore,  you  should  find 
upon  this  rule  of  law,  that  this  was  a  suffi- 
cient memorandum  in  that  respect,  then 
the  defendant  claims  still  further  that 
there  was  no  consideration  for  this  as  a 
contract.  A'one  is  expressed  in  it.  [Fancy  ! 
Compare  the  memorandimi  of  the  contract 
—  the  entire  contract  —  in  this  case,  as 
set  out  above,  with  the  memoranda  in 
writing,  in  the  numerous  cases  ante,  in 
this  Part,  where,  both  under  the  4th 
and  17th  sections  of  the  statute,  it  has 
been  held,  from  the  time  of  Lord  Ellen- 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM   IN   WRITING. 


561 


A  final  analysis  of  that  class  of  cases  in  Massachusetts,  Maine, 
and  in  those  other  States  where  it  is  affected  to  be  held  that  the 


borough,  in  Egerton  i'.  Mathews,  6  East, 
307,  and  Stadt  v.  Lill,  9  East,  348,  dowu, 
that  the  consideration  (often  very  much 
less  clearly  stated  tliau  in  Williams  v. 
Kobinson,  73  Me.  186,  where  it  is  stated 
as  clearly  as  it  can  be)  sufficiently  appeared 
in  the  writing,  or  by  fair  inference  from 
it,  and  that  the  mutuality,  the  assent  of 
the  other  party  to  the  contract,  need  not 
so  appear.] 

"  I  instruct  you,  as  matter  of  law,  that 
if  you  find  that  the  parties  made  this  parol 
contract,  that  this  plaintiff,  by  word  of 
mouth,  agreed  [tlie  assent  to  the  contract, 
the  mutuality]  to  pay  two  dollars  per  ton 
[the  consideration]  for  this  ice  delivered  on 
board  ship  at  Augusta,  that  parol  agree- 
vunt  [the  mutuality]  to  pay  the  price  on 
his  part  [the  consideration]  would  be  a 
sufficient  consideratio'ii  for  tlutt  contract 
[not  so!  The  "agreement"  is  the  con- 
tract itself  ;  the  consideration  is  that  which 
is  to  be  paid  —  the  quid  pro  quo  —  for  that 
which  is  to  be  received],  although  it  does 
not  appear  in  this  memorandum  of  the 
contract  signed  bj'  the  defendant,  to  be 
charged  by  it."  The  consideration  ap- 
pears ;  the  mutuality  does  not  appear,  and, 
by  the  statute,  does  not  require  to  aj)pear 
in  or  by  the  writing. 

The  charge  of  the  judge  on  the  trial 
was,  we  think,  dreadfully  absurd ;  but 
the  judgment  of  the  full  court  seems  to 
us  even  worse,  if  that  is  at  all  possible. 
The  contract  itself  is  an  agreement  ;  the 
aggregatio  mcntitini,  or  meeting  of  minds  ; 
the  mutual  assent.  The  "  legal  considera- 
tion," on  which  the  contract,  the  agree- 
ment, the  assent,  the  mutuality  is  founded, 
is  not  the  contract,  the  agreement,  the 
assent,  the  mutuality  ;  but  it  is  the  qiiid 
pro  quo,  —  that  which  is  to  be  done  by 
one  for  that  which  is  to  be  done  by  the 
other.  Take,  for  instance,  a  contract,  an 
agreement,  by  one  to  pay  another  the  debt 
of  a  third  person.  Tlie  agreement  by  the 
one  to  do  this,  and  by  the  other  to  assent 
to  it,  is  the  contract ;  tlie  aggregatio 
mentium  ;  the  meeting  of  the  minds.  A 
necessary  incident  to  this  contract  is  the 
consideration.  But  that  may  be  the 
giving  of  time  ;  foibearance  to  sue  ;  re- 
linquishing a  lien,  etc.  It  is  not  the 
mutuality  ;  the  assent.  That  is  the  con- 
tract. But  the  consideration  is  that 
which  sustains  the  contract  ;  not  the  con- 
tract itself.  The  reciprocal  considerations 
are  the  reciprocal  subjects  of  the  contract ; 
the  agreement  with  reference  to  them  is 
the  contract.  The  subjects  of  the  con- 
tract—  "all  its  essential  requisites"  — 
must  be  shown  in  the  writing  to  satisfy 


the  statute.  The  aggregatio  mentium,  the 
mutuality,  need  not  so  be  shown,  because 
that  can,  logically  and  finally,  only  be 
shown  by  both  the  parties  to  the  contract 
signing  the  writing,  and  that  the  statute 
does  not  require. 

Take,  for  instance,  now,  again,  the  case 
of  Stadt  V.  Lill,  9  East,  348,  which  was  a 
case  under  the  4th  section  of  the  statute, 
with  reference  to  which  it  had  been  ex- 
pressly held,  in  Wain  v.  \\'arlters,  5  East, 
10,  and  under  the  same  clause  of  the 
section,  that  the  consideration  must  be 
expressed  in  the  writing.  In  Stadt  v. 
Lill  it  was  held  by  Lord  Ellenborough, 
and  affirmed  by  the  full  Court  of  King's 
Bench,  that,  in  that  case,  the  considera- 
tion was  stated.  And  this  was  the  whole 
writing:  "I  guarantee  the  payment  of 
any  goods  which  J.  Stadt  delivers  to  J. 
Nichols."  J.  Stadt  did  not  sign  the 
writing,  and  there  was  nothing  on  the 
face  of  the  writing  to  show  any  mutuality 
between  the  parties  to  the  contract.  That, 
under  the  statute,  could  be  shown  other- 
wise. But  the  consideration  appeared ; 
the  payment  to  be  made  —  the  quid  pro 
quo  —  for  the  goods  to  be  delivered.  And 
that  case,  and  the  preceding  case  of  Eger- 
ton V.  Mathews,  6  East,  307,  under  the 
17th  section,  have  been  followed  and 
approved  since  then  in  cases  virtually 
without  number.  And  yet  the  utterly 
nonsensical  statement  is  made,  as  we  have 
seen,  in  Williams  v.  Robinson,  73  Me. 
186,  191,  that,  in  a  written  note  of  a  con- 
tract, that  "  I  hereby  agree  to  furnish  W. 
800  to  1000  tons  of  ice  for  the  sum  of  $2 
per  ton,"  no  consideration  is  expressed  in 
th  •  writing  !  Had  there  been  in  it  the 
statement,  "  For,  and  in  consideration  of 
the  sum  of  $2  per  ton,  to  be  paid  me  by 
W.  on  its  delivery,  I  do  hereby  agree  to 
deliver  him  1000  tons  of  ice,"  wliile,  as  in 
Egerton  v.  Mathews,  8  East,  307 ;  Stadt 
V.  Lill,  9  East,  348,  and  the  almost  in- 
numerable cases  which  have  followed 
them,  the  mutuality  would  not  appear, 
the  consideration  unquestionably  would 
do  so.  Eqi'.ally  clear  is  it  tiiat,  in  Wil- 
liams V.  Robinson,  73  Me.,  the  considera- 
tion for  the  defendant's  undertaking  does 
api)ear  in  the  writing,  as  it  does  apjjcar 
in  those  cases.  With  this  explanation, 
surely,  the  merest  tyro  in  law  can  see  tlio 
absurdity,  contradictions,  and  utter  un- 
soundness of  the  reasoning  of  the  full 
court  in  that  case,  in  the  following.  They 
say  :  —  . 

"  At  common  law,  while  every  simple 
contract,  whether  oral  or  written,  must  Iw 
founded  on  a  legal  consideration,  it  need 


86 


562 


COMMENTARIES   ON   SALES. 


[book   IV. 


consideration  (e.  e.,  that  which  one  is  to  receive /or  that  which  he 
is  to  give)  need  not  appear  by  the  writing,  in  cases  which  come 
under  such  sections  as  the  fourth  and  seventeenth  of  29  Car.  2, 
c.  3,  is  a  sufficient  and  conchisive  demonstration  of  the  utter  un- 
soundness of  those  cases.  Thus,  as  a  perfect  mass  of  contradic- 
tions, the  following  deductions  result  from  those  utterly  incon- 
sistent, illogical  decisions  :  — 

1.  As  regards  the  clause  in  the  fourth  section  relating  to  the 


not  be  expressed  in  the  writing  itself,  for 
parol  evidence  is  admissible  to  prove  it. 
Cummings  v.  Dennett,  26  Me.  397  ;  Bean 
V.  Burbank,  16  Me.  458.  Nor  did  the 
statute  of  frauds,  even  before  the  amend- 
ment expressly  declaring  it  unnecessary, 
ever  reijuire  the  consideration  to  be  recited 
in  the  note  or  memorandum  signed  by  the 
party  to  be  charged.  Packard  v.  Richard- 
son, 17  Mass.  122  ;  Lew  v.  Merrill,  4  Me. 
180,  189;  King  v.  Upton,  4  Me.  .387; 
Getchell  v.  Jewett,  4  Me.  350,  366  ; 
Gilligan  v.  Boardman,  29  Me.  91.  In 
Bean  v.  Burbank,  16  Me.  458,  and  Van- 
tassel  V.  Hathaway,  53  Me.  18,  no  accept- 
ance of  the  contract  [i.e.,  the  mutuality  ; 
treating  that  as  the  consideration]  or  other 
consideration  was  attempted  to  be  proved. 

"But  while,  as  before  seen,  the  memo- 
randum need  not  necessarily  mention  the 
consideration,  that  being  provable  by 
parol  testimony,  nevertheless,  in  order 
that  the  court  may  ascertain  the  rights  of 
the  parties  from  the  ivriting  itself,  without 
resort  to  oral  testimony  (Riley  v.  Farns- 
worth,  116  JIass.  223,  225,  226),  to  satisfy 
the  statute,  the  memorandum  must  contain 
tvtthin  itself,  or  by  some  reference  to  other 
written  evidence,  the  names  of  the  vendor 
and  vendee,  and  all  the  essential  terms  and 
conditions  of  tJie  contract,  expressed  with 
such  reasonable  certainty  as  may  be  under- 
stood from  the  memorandum  and  other 
written  evidence  referred  to,  if  any,  with- 
out any  aid  from  parol  testimony.  O'Don- 
nell  V.  Leeman,  43  Me.  158  ;  Jenness  v. 
Mt.  H.  I.  Co.,  55  Me.  20  ;  Horton  v. 
McCarthy,  53  Me.  394,  396  ;  Washington 
Ice  Co.  V.  Webster,  62  Me.  341." 

If  "all  the  essential  terms  and  con- 
ditions of  the  contract "  must  appear  in  the 
writing,  surely  there  cannot  he  the  omission 
of  tlie  consideration  —  all  of  the  terms  and 
conditions  of  the  contract  on  the  part  of 
one  of  the  pardes  to  the  contract  —  and 
show  a  contract  at  all.  So  far  was  this 
correctly  carried,  even  in  the  State  of 
Maine  itself,  and  in  one  of  the  above- 
cited  cases  (O'Donnell  v.  Leeman,  43  Me. 
158),  that,  although  the  considerati<m  was 
purported  to  be  shown,  as  "for  ,$1200, 
one  third  cash  down,"  in  the  writing,  yet, 
as  the  whole  consideration  was  not  stated 


in  the  writing,  viz.,  "Si 200;  one  third 
cash  down,  and  the  residue  in  equal  pay- 
ments, in  one  and  two  years,"  it  was  held 
that  the  writing  was  insufficient  to  satisfy 
the  statute  of  frauds  ;  and  this,  too,  as 
the  case  was  one  of  the  sale  of  land,  not- 
withstanding the  express  provision  in  the 
State  of  Maine  statutes  that  the  considera- 
tion need  not  be  set  forth  or  expressed  in 
the  writing  !  (see  Rev.  Stats,  of  Maine  of 
1840  ;  p.  591  ;  Rev.  Stats,  of  1857,  p.  831); 
the  court  saying  :  "  It  is  well  settled  that, 
unless  there  be  a  memorandum  showing, 
within  itself,  or  by  reference  to  some  other 
paper,  all  the  material  conditions  of  the 
contract,  no  action  can  be  maintained  upon 
such  contract  either  in  law  or  in  equity." 
But,  in  Williams  v.  Robinson,  73  Me. 
186,  196,  the  Supreme  Court  of  Maine 
went  further,  and  expressly  held  that,  in 
the  writing,  in  that  case,  "  Its  terms  are 
clearly  expressed,  and  contain  all  the 
elements  necessary  to  give  it  legal  effect  as 
a  written  contract "  ;  of  which,  being  an 
executory  contract,  a  legal  consideration 
was,  imquestionably,  one  of  such  ele- 
ments ;  and,  with  as  little  question,  such 
consideration  was  "  clearly  expressed  "  on 
the  very  face  of  the  "written  contract." 
The  palpable  and  utterly  inexcusable 
blunder  committed  in  all  these  cases, 
which  propound  the  utterly  untenable 
doctrine,  as  in  the  courts  of  Massachu- 
setts, Maine,  and  a  few  of  the  other 
States  which  follow  them,  that,  under 
such  a  statute  as  29  Car.  2,  c.  3,  §§  4  and 
17,  the  consideration  does  not  have  to 
appear  in  and  by  the  writing,  or  l>y  neces- 
sary inference  from  it,  results  from  their 
holding,  in  effect,  that  the  consideration 
and  the  mutuality  are  synonymous  ;  and, 
therefore,  where  the  mutuality  does  not 
appear  by  the  writing,  that  the  considera- 
tion for  the  undertaking  of  the  party  sign- 
ing the  writing  is  not  stated  either.  We 
think  our  examination  of  the  Maine  and 
Massachusetts  cases  themselves  thoroughly 
demonstrates  the  unsoundness  and  actual 
absurdity  of  that  long  standing,  utterly 
untenable  theorj%  which  has  been  allowed 
so  long  to  pass  without  the  emphatic  con- 
demnation which  it  should,  at  its  very 
inception,   have  received. 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM   IN   WRITING.  563 

special  promise  of  one  to  answer  for  the  debt,  default,  or  miscar- 
riage of  another,  thev  do  hold  that  the  consideration  need  not  be 
expressed  in  the  writing,  signed  by  the  party  to  be  charged,  or  by 
necessary  inference  from  it. 

Thus,  in  all  such  cases  as  those  represented  by  Wain  v.  Warlters,i 
Saunders  v.  Wakefield,^  and  their  converse,  Stadt  v.  Lill,^  they 
hold  that  the  mere  naked  promise  in  writing  to  pay  the  debt,  is 
sufficient  to  satisfy  the  statute,  without  either  the  consideration 
or  the  mutuality  appearing  in  or  by  the  writing.  Here,  in  effect, 
they  distinguish  the  mutuality  from  the  consideration.  Under 
the  English  decisions,  on  this  clause  of  the  section,  the  holding  is, 
as  it  is  with  reference  to  the  other  clauses  of  the  fourth  section 
and  to  the  contracts  or  bargains  under  the  seventeenth  section, 
that  the  consideration  must  appear  in  and  by  the  writing,  or  by 
necessary  inference  from  it;^  but  that  the  mutuality  need  not 
so  appear.^  Thus,  under  the  well-decided  English  cases,  "  I,  A., 
promise  B.  to  pay  him  C.'s  debt,"  would  show  neither  considera- 
tion nor  mutuality ;  and  would  be  no  note  or  memorandum  of 
a  contract,  bargain,  or  agreement,  as  required  by  the  statute  ; 
but  "  I,  A.,  promise  to  pay  B.  for  advances  to  be  made  by  him  to 
C."  shows  the  consideration,  by  fair  inference  ;  the  future  advances 
being  a  good  consideration  for  the  promise  to  pay  for  them.  Here 
is  a  note  of  the  whole  contract  to  satisfy  the  statute ;  the  mutual- 
ity, the  assent  to  the  contract,  or  the  actual  making  of  the  ad- 
vances, not  being  required,  by  the  statute,  to  be  shown  by  the 
writing.  Again:  "I,  A.,  in  consideration  of  B.'s  forbearing  to 
sue  C,  for  six  months,  promise  to  pay  him  then,  C.'s  debt  to 
him,"  is  a  note  of  the  whole  contract,  so  far  as  the  statute  re- 
quires it  to  be  evidenced  by  the  writing ;  and  shows,  by  fair 
inference,  the  consideration;  the  forbearing  to  sue  being  a  good 
consideration  for  the  promise  to  pay  the  debt.  But  the  assent  to 
this  contract  by  B.,  the  mutuality,  is  not  shown  by  the  writing, 
the  statute  not  requiring  it  to  be  so  shown.  But,  "  I,  A.,  promise 
B.  to  pay  him  C.'s  debt,"  although,  on  its   face,  being  simply 

1  5  East,  10.  see  Buckhouse  v.  Crosby,  2  Eq.  Cas.  Ab. 

2  4  B.  &  Aid.  95.  33  ;  Seton   v.  Slade,   7  Ves.   275  ;   Coles 

3  9  East,  348.  v.  Trecothick,    9    Ves.    250  ;    Tawiiey  v. 
*  See  Wain  v.  Warlters,  5  East,   10  ;     Crowther,  3  Br.  Cli.  Cas.  101,  318;  Mat- 

Egerton  v.  Mathews,  6  East,  307;  Stadt  ton  v.  Grey,  2  Br.  Cli.  ('as.  164;    Lord 

V.  Lill,  9  East,  348  ;  Saunders  v.  Wake-  Ormond  v.  Anderson,  2  Ball  &  I5e.  370  ; 

field,  4  B.  &  Aid.  95,  and  the  numerous  Western  v.  Kussell,  2  Ves.  &  B.  192;  Al- 

other  cases  to  the  same  effect  cited  in  the  len  v.  Bennett,  3  Taunt.    1(59;    C'oloman 

first  portion  of  this  Part.  v.  Upcot,  5  Vin.  Ab.  527  ;  The  Liy.'ipool 

^  See    Lavthoarp    v.    Bryant,    2    Bing.  Borough  Bank  v.  Kceles,  4  H.  &  N.  139  ; 

N.  C.  735  ;  Newhery  V.  Armstrong,  M.  &  I^Iozley  v.  Tinkler,  1    C.  M.  &  It.  692; 

M.  389,  ;?er  Tindal,  C.  , J.  :   "The  written  Warner  v.     Willington,    3    Drew.    .W3  ; 

agreement   must  show  the  consideration,  Smith  f.  Nenlc.  2  (.'.!{.  N.  8.  67;  Reuss 

but  it  need  not  show  'mutuality.'"     And  v.  Picksley,  L  K.  1  Ex.  312. 


564  COMMENTARIES    ON   SALES.  [bOOK   IV. 

nudum  pactum,  it  is  no  note  or  memorandum  of  a  contract  at 
all,  as  required  by  the  statute ;  showing  neither  directly,  nor  by 
fair  inference  from  it  at  all,  what  the  consideration  is,  —  for  that, 
as  generally  held,  may  be  anything  either  of  injury  or  detriment 
to  the  promisee  or  of  benefit  or  advantage  to  the  promisor,  —  is 
held,  under  the  utterly  unsound  decisions  of  the  courts  of  Massa- 
chusetts, Maine,  and  of  those  few  other  States  following  them, 
though  neither  a  note  or  memorandum  of  a  contract,  nor  show- 
ing consideration  or  mutuality  at  all,  to  satisfy  the  statute. 

3.  Hence,  as  above  shown,  as  regards  the  clause  in  the  fourth 
section,  as  to  the  special  promise  by  one  to  pay  the  de])t  of  an- 
other, they  do  clearly  distinguish  between  the  consideration  and 
the  mutuality;  and  do  there  hold,  not  confounding  there  the 
mutuality  with  the  consideration,  that,  under  that  clause,  the 
consideration  need  not  be  shown  in  the  writing ;  and  hence,  under 
that  clause,  they  do  hold,  right  in  the  teeth  of  the  statute,  that 
neither  the  whole  contract  or  agreement,  nor  a  note  or  memor- 
andum of  the  whole  contract  or  agreement,  nor  "  all  the  essential 
requisites  of  the  contract"  need  appear  in  or  by  the  writing 
signed  by  the  party  to  be  charged  thereby,  nor  by  fair  inference 
therefrom. 

3.  But,  directly  opposed  to  this,  with  reference,  clearly,  to  the 
clause  in  the  fourth  section  relating  to  the  sale  of  lands,  and  to 
the  whole  of  the  seventeenth  section,  as  to  contracts,  bargains,  or 
agreements  as  to  the  sale  of  goods,  wares,  and  merchandise,  as 
therein  named  ;  they  hold,  that  there  must  be  a  note  or  memoran- 
dum in  writing,  signed  by  the  party  to  be  charged,  of  the  whole 
contract,  independent  of  the  mutuality,  showing  "  all  the  essen- 
tial elements  of  the  contract,"  and,  therefore,  necessarily  and  of 
course,  the  consideration,  without  which  neither  "  all  the  essential 
elements  of  the  contract"  appear  in  the  writing,  nor,  in  fact,  any 
semblance  of  an  executory  contract,  bargain,  or  agreement  at  all, 
but  that  which,  on  its  very  face,  is  simply  nudum  pactum. 

4.  And  yet,  although  they  continually  hold,  as  we  show,  ante, 
fully,  by  the  cases  which  we  have  exhaustively  examined,  that  the 
consideration,  as  one  of  "  all  the  essential  elements  of  the  con- 
tract," must  fully  and  accurately  appear  or  \)Q  stated  in  the  writing; 
yet,  in  the  very  face  of  this,  they  affect  in  virtually  all  those  cases 
to  hold  that  the  "  consideration  "  need  not  appear  in  or  be  ex- 
pressed by  the  writing,  and  that  the  well-decided  English  cases 
which  hold  that  it  must  be  shown  by  the  writing,  or  by  a  fair  in- 
ference from  it,  are  wrongly  decided. 

5.  That  they  have  reached  such  an  absolutely  absurd  position 
by  confounding,  in  connection  with  the  sales,  contracts,  bargains. 


PART  VIII.]        THE   NOTE  OR  MEMORANDUM   IN  WRITING.  565 

or  agreements,  of  or  relating  to  land  in  the  fourth  section,  and  to 
the  goods,  wares,  and  merchandise  of  the  seventeenth  section,  the 
consideration^  in  such  sales,  contracts,  bargains,  or  agreements, — 
Avhich  the  statute  requires  to  be  evidenced  by  the  writing,  signed 
by  the  party  to  be  charged,  —  with  that  entirely  different  entity, 
the  aggregatio  mentium,  the  mutuality,  the  assent  to  the  sale,  con- 
tract, bargain,  or  agreement,  by  the  other  party  thereto,  —  which 
the  statute  does  not  require  to  be  evidenced  by  the  writing  signed 
by  the  party  whom  it  is  sought  to  charge  thereby,  but  can  be 
shown  by  evidence  dehors  such  writing. 

6,  The  confounding  by  those  courts,  in  reference  to  the  sales, 
contracts,  bargains,  or  agreements,  last  above  named,  of  the  con- 
sideration, which  they,  although  affecting  not  to  do  so,  really  hold 
must  be  shown  in  and  by  the  writing,  with  the  mutuality,  which 
they  miscall  the  "  consideration,"  which  need  not  be  so  shown, 
but  which  "  may  be  proved  otherwise,"  shows  the  incorrectness  of 
their  decisions  with  respect  to  the  clause  in  the  fourth  section  re- 
lating to  the  promise  of  one  to  answer  for  the  debt,  default,  or 
miscarriage  of  another,  where  they  have  not  confounded  the  con- 
sideration with  the  mutuality  ;  the  consideration,  for  the  special 
promise,  contract,  bargain,  or  agreement,  as  to  that  clause,  being 
as  much  required  to  be  shown  in  the  writing,  by  the  language  of 
the  fourth  section,  as  in  the  case  of  the  sale  of  land  under  that 
section,  or  by  the  language  of  the  seventeenth  section,  as  to  con- 
tracts, bargains,  or  agreements  for  the  sale  of  goods,  wares,  and 
merchandise. 

7.  The  effect  of  the  judicial  confounding  of  the  consideration 
with  the  mutuality,  seems  to  have  been,  that  it  has  been  followed 
up,  in  some  of  the  States,  by  the  legislatures,  as  in  Maine  and 
Massachusetts,  where  it  is  provided  that  the  consideration  need 
not  appear  in  the  writing,  with  respect  to  such  special  promises, 
contracts,  and  agreements  as  those  in  the  fourth  section  of  the 
English  statute,  and,  as  in  Michigan,  where  ^  such  a  provision  is 
made  applicable  to  all  the  contracts,  agreements,  or  promises  re- 
quired, by  their  Statute  of  Frauds,  to  be  evidenced  by  writing. 
The  direct  effect  of  this,  if  they  intend  "  consideration  "  to  mean 
consideration,  would  be,  by  the  one  section  which  provides  that  the 
"  consideration  "  need  not  be  expressed  in  the  written  "  contract 
or  agreement,"  ^  to  repeal  the  previous  sections,  which   provide 

1  See  Michigan  Genl.  Sts.  of  1882,  eration  is  expressed.  An  executory  con- 
§  6189  ;    old  §§  3187,   4703.  tract  or  agreement,  with  only  one  side  to 

2  They  never  seemed  to  have  consid-  it,  would  he  rather  difficult,  surely,  to  de- 
ered  the' impossihility  of  there  heing  a  fine.  Not  only  wouhlit  lack  the  essential 
"written  contract  or  arjrecmcM"  (in  the  ingredient  of  mutuality,  but,  witliout  a 
ordinary  sense  of  contract  or  agreement,  consideration,  it  would  be  a  mere  nudum 
not  including  gifts),  in  which  no  consid-  pactian  —  a.  nuked,  unsupported  promise. 


566  COMMENTARIES   ON   SALES.  [BOOK  IV. 

that  the  agreement,  contract,  or  bargain,  or  some  note  or  memor- 
andum of  the  agreement,  contract,  or  bargain,  must  be  in  writing, 
signed  by  the  party  to  be  charged  therewith.  But  the  courts,  ex- 
tending their  confusion,  as  with  their  construction  of  the  language 
of  tlie  English  statute,  in  making  consideration  sometimes  mean 
mutuality,  and  sometimes  only  consideration,  properly  ;  similarly 
construe  the  word  "  consideration  "  in  their  statutes,  making  it,  as 
under  their  construction  of  the  English  act,  mean,  in  the  one  case 
consideration,  and  in  the  others  only  mutuality.^ 

We  think  that,  without  even  considering  the  effect  of  the  Eng- 
lish cases,  the  result  of  our  examination  of  so  many  of  the  repre- 
sentative cases  in  this  country,  which  hold,  or  affect  to  hold,  that 
the  statute,  which  requires  that  the  contract,  bargain,  agreement, 
or  some  note  or  memorandum  of  the  contract,  bargain,  or  agree- 
ment, must  appear  in  writing,  signed  by  the  party  sought  to  be 
charged  thereby,  is  satisfied  by  a  note  or  memorandum  in  writing 
of  merely  one  side  of  such  contract,  bargain,  or  agreement,  is  to 
show  that  those  cases  do  not  themselves  sustain  such  an  unsound 
position,  and  that,  to  the  extent  to  which  they  really  do  hold  this 
fallacious  doctrine,  those  cases  themselves  show,  examined  as  a 
whole,  the  utter  untenability  and  unsoundness  of  that  which  they 
so  hold,  or  affect  to  hold.  But  we  shall  examine  a  few  of  the 
cases  in  this  country  which  sustain  what  we  think  is  clearly  the 
sound  doctrine  on  the  subject. 

In  a  very  early  case  in  New  York  ^  (a.  d.  1808),  the  question 
was  expressly  decided  by  the  unanimous  judgment  of  the  court, 
as  one  that  scarcely  admitted  of  doubt.  Van  Ness,  J.,  in  deliver- 
ing the  judgment  of  the  court,  said  :  "  I  am  clearly  of  opinion, 
that  the  consideration,  as  well  as  the  oromise,  must  be  in  writing. 
The  statute  provides  that  the  party  shall  not  be  charged,  unless 
the  agreement  upon  which  the  action  shall  be  brought  be  in  writ- 
ing. Tiiis  means  the  whole  agreement,  of  which  the  consideration 
forms  an  essential  and  material  part.     It  is  as  necessary  to  the 

1  See   tlie    cases   we    have    examined,  its   consideration,    but    makes    no    other 

supra,  decided  by  the  courts  of  Massaohu-  change."     How  the  "  whole  terms  of  the 

setts  and  Maine,  and  see  Jones  v.  Palmer,  contract "  can  be  set  forth,  and,   at  the 

1  Doug.  (Mich.)  379  ;  McMurtrie  v.  Ben-  same  time,  one  half  of  them  be  omitted, 

nette,   Harr.   Ch.  (Mich.)  124,126;  Mil-  covering  all  the  one  side  of  the  contract,  is 

lard    V.   Millard,    lb.   373,  392 ;    Bouvier  not   clear.     See    furtlier,    McClintock    v. 

V.  Caldwell,  8  Mich.  463,  468,  469  ;  Mow-  Laing,   22  Mich.   217  ;   The   Detroit,  &c.  . 

rey   v.    Vandling,    9    Mich.   39;    Hall   v.  R.  R.  Co.  v.   Forbes,  30  Mich.   165,   173 

Soule,  11  Mich.   494,   497.     In  this  last-  et   seq.  ;    Palmer  v.   The   Marquette,   &c. 

named  case  it  is  said:    "It  has   always  Rig.    Mill  Co.,  32  Mich.    274;    Abell   v. 

been  settled  that  the  memorandum  must  Munson,  18  Miss.  306;  and  other  Michi- 

show  the  whole  terins  of  the  contract,  and  gan  cases  cited  and  examined,  ante,  p.  548, 

that  no  resort  can  be  had  to  parol  evidence  et  seq.,  n. 

to  add  to  them.     Our  statute  does  not  re-  2  gears  v.  Brink,  3  Johns.  210. 

quire  a  contract  of  this  kind  to  set  forth 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM   IN   WRITING.  567 

prevention  of  fraud  and  perjury,  that  the  consideration  which 
leads  to  the  promise  should  be  in  writing,  as  the  promise  itself. 
The  word  '  agreement '  comprehends  the  consideration  as  well  as 
the  promise." 

In  Bogert  v.  Ogdens,^  the  question  as  to  the  want  of  mutuality 
in  the  written  note  or  memorandum  of  the  contract,  to  satisfy  the 
statute,  is  not  confounded,  as  it  is  in  so  many  of  the  previous 
American  cases  we  have  examined,  with  the  want  of  the  consider- 
ation being  shown  by  the  writing.  In  this  case  it  was  not  neces- 
sary to  decide  the  question  as  to  the  mutuality  not  so  appearing ; 
but  it  was  held  by  the  court,  Kent,  C.  J.,  delivering  the  opinion, 
that  the  meaning  and  substance  of  the  statute  is,  and  without 
which  the  beneficial  end  of  it  would  be  entirely  defeated,  that  the 
memorandum  must  state  the  contract  with  reasonable  certainty, 
so  that  the  substance  of  it  can  be  made  to  appear,  and  be  under- 
stood from  the  writing  itself,  without  having  recourse  to  parol 
proof.  So,  in  the  New  York  Court  of  Appeals,  it  was  held  that, 
to  constitute  a  contract,  there  must  be  parties,  a  subject-matter, 
and  a  consideration.  The  written  memorandum  demanded  by  the 
statute  requires  this  in  the  writing  subscribed  by  the  party  to  be 
charged.  The  form  of  the  writing  is  not  regarded.  If  the  writ- 
ing expresses  a  contract,  no  matter  how  informally,  the  statute  is 
satisfied.  So,  on  the  other  hand,  no  matter  how  formal  the  writ- 
ing may  be,  if  it  do  not  contain  within  itself  a  contract,  it  fails  to 
satisfy  the  statute. ^ 

In  a  case  in  the  Supreme  Court  of  the  United  States,^  decided 
several  years  (a.  d.  1799)  before  Wain  v.  Warlters  ^  was  decided 
in  England,  it  was  held,  in  an  action  against  the  defendant,  on  a 
special  promise  to  pay  the  debt  of  another,  that  the  undertaking, 
to  save  it  from  the  Statute  of  Frauds,  must  be  in  writing,  and 
"  ivholly "  so,^  and  that  the  papers  relied  upon  "  as  the  written 
agreement  "  cannot  be  added  to,  or  varied,  by  parol  testimony,  nor 
can  they  be  so  far  explained  as  to  affect  their  import  with  regard 
to  the  supposed  undertaking.^ 

1  3  Johns.  399,  419.  But  as  the  Virginia  act  (see  Va.  Rev.  Code 

2  Calkins  v.  Falk,  38  How.  Pr.  62.  of  1803,  c.  10,  §  1)  enacted  that  no  action 
'  Clarke  v.  Rus.sel,  3  Dall.  415,  424.  should  be  brought  ujwn  a  "special  proin- 

*  5  East,  10.  ise,"  it  is  questionable  if  there  would  bo 

*  The  word  "wJiolly"  is  italicized  by  any  distinction  in  the  construction  of  the 
the  court.  two  statutes.      15ut  in   Violctt  v.  Patton, 

6  In  Violett  v.  Patton,  ^  Cranch,  142,  6  Cranch,  142,  it  was  held  that  the  writ- 
it  was  held  that  as  in  Virginia  the  statute  ing  did  (;.vpress  a  consideration.  In  this 
provided  that  an  action  could  not  be  case,  Marshall,  C.  J.,  asked  counsel :  "Do 
brought  unless  the  "promise  or  agree-  you  mean  to  state  that  if  A.  writes  a  letter 
ment,"  or  some  note  or  memorandum  to  B.,  stating  that  if  H.  will  let  C.  liavo 
thereof  were  in  writing,  that  the  .same  goods,  A.  will  pay  for  them  if  <_".  docs  not, 
reasoning  would  not  apyily  to  the  Virginia  A.  would  not  Ix'  be  bound?"  to  which 
Statute,  as  it  would  to  2'j'Cor.  2,  c.  3,  §  4.  coun.sel   properly  rci>lied  :    "  Probably  iu 


668  COMMENTARIES   ON   SALES.  [BOOK  IV. 

And  in  Barry  v.  Coombe,^  under  the  Statute  of  Frauds  of 
Maryland,  which  requires  in  the  case  of  a  sale  of  land  written 
evidence  of  the  contract,  it  was  held  by  the  United  States 
Supreme  Court  that  the  statute  requires  a  note  or  memorandum 
in  writing  of  the  agreement ;  and  that,  although  the  form  is  not 
regarded,  nor  the  place  of  signature,  yet  that  the  writing  must 
furnish  evidence  of  a  complete  and  practicable  agreement.  In  this 
case  the  note  or  memorandum  in  writing,  which  was  signed  by  the 
party  sought  to  be  charged,  showed  the  consideration  ;  but,  as  it 
was  not  signed  by  the  other  party  to  the  contract  (whose  name, 
however,  sufficiently  appeared  in  it  to  show  who  was  the  other 
party  to  the  contract),  the  mutuality  did  not  appear  by  the  writing. 
The  following  words  were  at  the  foot  of  an  account  between  the 
plaintiff  and  defendant,  signed  by  the  defendant :  "  By  my  pur- 
chase of  your  one  half  E.  B.  wharf  and  premises,  this  day,  as 
agreed  on  between  us,  $7,578.63."  The  court,  in  holding  that  the 
statute  was  satisfied,  said  :  "  Brief  as  it  is,  this  memorandum 
contains  a  condensed  summary  of  all  the  essentials  to  a  complete 
contract.  By  the  use  of  the  present  tense  it  speaks  of  a  thing 
final  and  concluded.  By  reference  to  the  date  at  the  head  of  the 
account,  the  use  of  the  words, '  this  day,'  gives  a  date  to  the 
transaction.  By  the  use  of  the  pronouns  '  your'  and  '  us,'  the  par- 
ties are  distinctly  introduced.  By  carrying  out  the  price  the  con- 
sideration is  expressed  tvith  absolute  precision^  and  by  deducting 
it  from  the  sum  due  by  Barry,  the  receipt  of  the  consideration  is 
acknowledged  ;  nor  is  there  a  single  ingredient  of  a  complete  con- 

that  case  it  would  be  considered  that  the  case  has  from  its  origin  encountered  many 
letter  did  state  the  consideration."  The  difficulties,  and  been  matter  of  serious  ob- 
consideration  would  there  be  stated,  but  servation  both  at  the  bar  and  on  t}ie  bench, 
not  the  mutuality.  in  England  and  America.  After  many 
In  DeWolf  v.  Rabaud,  1  Pet.  476,  doubts,  it  seems  at  last,  in  England,  by 
Judge  Story,  in  delivering  the  judgment  the  recent  decisions  of  Saunders  v.  Wake- 
of  the  United  States  Supreme  Court,  said  :  field,  4  B.  &  Aid.  595,  and  Jenkins  v. 
"The  case  of  Wain  v.  Warlters,  5  East,  Reynolds,  3  Br.  &  B.  14,  to  have  settled 
10,  was  the  first  case  which  settled  the  down  into  an  approved  authority."  How- 
point  [but  see,  per  Wilmot,  J.  (a.  d.  1765),  ever,  in  DeWolf  a;.  Rabaud,  1  Pet.  476, 
in  Pillans  v.  Mierop,  3  Burr.  1663,  1666,  the  court  did  not  decide  the  question,  con- 
who  laid  down  the  same  principle  which  sidering  themselves  bound  by  the  holding 
was  subsequently  established  by  Wain  v.  of  the  courts  of  New  York,  which  have 
Warlters,  5  East,  10,  that  in  the  case  of  followed  and  approved  the  English  de- 
the  special  promise  of  one  to  pay  the  debt  cisions. 
of  another,  the  note  or  memoi-andum  in  ^1  Pet.  640. 

writing  must   show   the  consideration  as  ^  ^his  shows  the  incorrectness  of  the 

well  as  the  promise,  to  satisfy  the  statute],  view  of  Browne  on  the  Statute  of  Frauds, 

that  it  was  necessary,  to  escape  from  the  §§  381,  381«,  commented  on  by  us,  supra, 

statute    of    frauds,    that    the    agreement  where,  rather  confounding,  as  is  so  often 

should  contain   the  consideration  for  the  done,  the  mutuality  with  the   considera- 

promise,  as  well  as  the  promise  itself.     If  tion,  the  opinion  is  expressed  that  setting 

it  contained  it,  it  has   since   been  deter-  forth  the  price  in  the  writing,  of  the  land 

mined  that  it  is  wholly  immaterial  wheth-  or  goods  purchased,  is  something  dilTerent 

er  the  consideration  be  stated  in  express  from  showing  the  consideration, 
terms,  or  by  necessary  implication.     That 


PART    VIII.]        THE   NOTE   OR   MEMORANDUM    IN   WRITING.  569 

tract  deficient,  unless  the  description  of  the  property  contracted 
for  be  insufficient."  And  on  this  point  it  was  decided  that  ex- 
trinsic evidence  was  admissible  to  show  what  was  meant  by  the 
"  E.  B.  wharf  and  premises."  ^ 

The  same  doctrine  is  laid  down  by  Miller,  J.,  in  the  much  later 
case  of  Grafton  v.  Cummings,^  where  he  says,  in  delivering  the 
unanimous  judgment  of  the  United  States  Supreme  Court :  "  The 
statute  not  only  requires  that  the  agreement  on  which  the  action 
is  brought,  or  some  memorandum  thereof,  shall  be  signed  by  the 
party  to  be  charged,  but  that  the  agreement  or  memorandum 
shall  be  in  writing.  In  an  agreement  of  sale  there  can  be  no 
contract  without  both  a  vendor  and  a  vendee.  There  can  be  no 
purchase  without  a  seller.  There  must  he  a  sufficient  description 
of  the  thing  sold  and  of  the  price  to  he  paid  for  it.  It  is,  therefore, 
an  essential  element  of  a  contract  in  writing  that  it  shall  contain 
within  itself  a  description  of  the  thing  sold,  hy  which  it  can  he 
known  or  identified,  of  the  price  to  he  paid  for  it,  of  the  party  who 
sells  it,  and  the  j^a^ty  who  huys  itJ^  That  is,  in  order  to  satisfy 
the  requirements  of  the  statute,  the  whole  contract,  bargain,  or 
agreement,  or  a  note  or  memorandum  thereof,  that  is,  of  the 
whole  contract,  bargain,  or  agreement,  must  appear  in  the  writing, 
or  by  fair  inference  from  it ;  and,  therefore,  of  course,  the  con- 
sideration —  that  which  the  one  is  to  get  for  that  which  he  is  to 
give  —  must  so  appear,  or  there  is  no  contract  shown.^ 

1  See  as  to  the  admissibility  of  parol  on  the  point  in  question,  that  eminent 
evidence  to  explain  technical  expressions,  judge  said  :  'The  question  is  wliether  tliat 
or  to  connect  papers  referred  to  in  the  note  word  [agreement]  is  to  be  understood  in  a 
in  writing,  Boydell  v.  Drummond,  11  East,  loose,  incorrect  sense,  in  which  it  may  be 
142;  Coles  v.  Treeothick,  9  Yes.  250;  sometimes  used  as  synonymous  to  promise  or 
Clunan  v.  Cooke,  1  Sch.  &Lef.  22  ;  Dobell  understanding,  or  in  its  more  coriect  sense 
V.  Hutchinson,  3  A.  &  E.  355  ;  Johnson  of  signifying  a  mutual  contract  on  consid- 
V.  Miller,  35  N.  J.  Law,  344  ;  Parkhurst  eration  between  two  or  more  parties.'  He 
V.  Van  Cortlandt,  1  Johns.  Ch.  273  ;  First  held  the  latter  to  be  the  true  construction, 
Baptist  Church  v.  Bigelow,  16  Wend.  28  ;  and  that  all  its  essential,  elements  must  ap- 
O'Donnell  v.  Leeinan,  43  Me.  158  ;  Knox  pear  in  the  memorandum,  including  tlie 
V.  King,  36  Ala.  367  ;  Sievewright  v.  consideration,  which  in  that  case  was  ab- 
Archibald,  17  Q.  B.  103:  McLean  v.  sent.  This  has  been  held  to  be  the  law  in 
Nicoll,  7  Jur.  n.  s.  999;  Lerned  n.  England  ever  since."  And  while  tlie  court 
Wannemacher,  9  Allen,  412.  do  not  make  even  the  slightest  reference 

2  99  U.  S.  100,  106.  to  such  cases  as  tliose  in  Massachusetts  and 
8  The  case  of  Grafton   v.   Cummings,     Maine,  which  we  have  exhaustively  exam- 

99  U.  S.   100,  was  one  under  the  statute  iiied   supra,  they  exjjressly   approve   and 

of  New  Hampshire,  where  the  clause  relat-  follow   tlie   case   of  Williams   v.   Byrnes, 

ing  to  the  sale  of  land  is  in  the  same  Ian-  9  Jur.    N.   s.  363,   decided  by  the  privy 

guage  as  in  29  Car.  2  c.  3,  §  4.    The  court  council,  where,  in  delivering  the  judgment 

recognized  and  approved,  without  question,  of  the  judicial  committee.  Sir  J.  T.  Cole- 

tlie  authority  of  the  English  decisions,  as  ridge   says:    "The  words  of  the  statute 

sustaining  their  view  of  the  construction  require   a   written  note   of  a   bargain  or 

of  the  statute  as  above  expressed.     They  contract,  the   statute   clearly    making  no 

say  (at  p.  109):  "In  the  leading  case  of  distinction     between    tliose     two    words. 

Wain  V.  Warlters,  5  East,  10,  decided  by  [This  shows  the  incorrectness  of  Smith, 

Lord  Ellenborough  under  the  Engli.sh  Stat-  Par.sons,    &c.,  on  this  point.  1     This  lan- 

ute,  the  same  as  that  of  New  Hampshire  guage  cannot  be  satisfied  unless  the  exist- 


570 


COMMENTARIES   ON   SALES. 


[book  IV. 


So,  in  Salmon  Falls  Manuf.  Co.  v.  Goddard,^  the  United  States 
Supreme  Court  held,  under  the  section  of  the  Massachusetts  stat- 


oice  of  contract  appear  evideiwed  in  writing  ; 
and  a  bargain  or  contract  cannot  so  appear 
unless  the  parties  to  it  are  specified,  either 
nominally  or  by  description  or  reference. 
It  is  true  that  the  statute  does  not  require 
the  whole  bargain  in  all  its  terms  to  be 
stated.  It  stipulates  only  for  a  note  or 
memorandum  of  it,  signed  by  the  party  to 
be  charged  ;  but  it  does,  in  effect,  require 
that  the  essentials,  i.  e.,  all  those  things  with- 
out which  it  can  be  no  bargain  at  all,  shall 
he.  Upon  this  principle  it  was  that  the 
courts  determined,  under  the  4th  section, 
that  the  consideration  of  an  agreement 
must  appear  on  the  face  of  the  memoran- 
dum of  a  guarantee,  or  be  matter  of  neces- 
sary  implication  from  its  language.  It 
was  obviously  the  intent  of  the  statute  to 
prevent,  as  far  as  it  could  conveniently, 
the  mischief  of  being  obliged  to  have  re- 
course to  oral  evidence  in  regard  to  the 
transactions  within  it.  But  it  would  fail 
to  accomplish  its  object  in  a  most  material 
particular,  and  iu  one  in  which  its  require- 
ments might  always  be  most  easily  satis- 
fied, if  it  did  not  impose  the  necessity  of 
stating  the  name  of  the  seller  as  well  as  of 
the  buyer  ;  of  the  party  by  whom  goods 
were  to  be  supplied  as  well  as  of  him  to 
whom  they  were  to  be  supplied,  under  the 
17th  section  ;  or  of  the  party  to  be  guar- 
anteed as  well  as  of  him  who  is  to  guaran- 
tee, under  the  4th.  Unless  this  be  done, 
oral  evidence  must  be  had  recourse  to,  and 
the  risk  incurred,  that  a  party  may  be  sued 
by  one  with  whom  he  had  never  intended 
to  have  any  transaction,  —  a  matter  of  the 
greatest  importance  ujider  many  suppos- 
able  circumstances."  See  also,  Champion 
V.  Plummer,  1  B.  &  P.  N.  R.  252; 
Wheeler  v.  Collier,  1  M.  &  M.  12-3  ;  Short- 
rede  V.  Cheek,  1  A.  &  E.  57  ;  Graham  v. 
Musson,  5  Bing.  N.  C.  603  ;  Allen  v.  Ben- 
net,  3  Taunt.  169  ;  Batenian  v.  Phillips, 

15  East,  272  ;  Laythoarp  v.  Bryant,  2 
Bing.  N.  C.  735  ;  Charlewood  v.  The  Duke 
of  Bedford,  1  Atk.  497  ;  Egerton  v. 
Mathews,  6  East,  307  ;  Jenkins  v.  Rey- 
nolds, 3  Br.  &  B.  14 ;  Bainbridge  v.  Wade, 

16  Q.  B.  89  ;  Edwards  v.  Jevons,  8  C.  B, 
436  ;  Bickmyr  v.  Darnell,  1  Salk.  27 ; 
Stadt  V.  Lill,  9  East,  348  ;  Kennaway  v. 
Treleaven,  5  M.  &  W.  498  ;  Leroux  v. 
Brown,  12  C.  B.  801  ;  Jones  v.  Williams, 
7  M.  &  W.  493  ;  Walter  v.  Dodgson,  3  C. 
&  P.  162  ;  GaiTett  v.  Handley,  3  B.  &  Cr. 
462  ;  Williams  v.  Lake,  29  L.  J.  Q.  B.  1  ; 
Galley  v.  Taylor,  2  C.  &  K.  551  ;  Gaunt 
V.  Hill,  1  Stark.  10.  Twenty-five  years 
before  Wain  v.  Warlters,  5  East,  10,  was 


decided,  it  was  held  in  Preston  v.  Mer- 
ceau,  2  W.  Bl.  1249  (a.  d.  1779),  that 
parol  evidence  was  inadmissible  to  add  to 
the  consideration  in  the  written  evidence 
of  a  contract  within  the  statute,  b)'  prov- 
ing an  additional  rent  beyond  that  ex- 
pressed in  the  written  agreement  for  a 
lease  ;  Blackstone,  J.,  saying  :  "  Courts 
should  be  very  cautious  in  admitting  any 
evidence  to  supply  or  explain  written 
agreements.  Else  the  statute  of  frauds 
would  be  eluded,  and  the  same  uncertainty 
introduced  by  supjdetory  or  explanatory 
evidence,  which  that  statute  has  sup- 
pressed iu  respect  to  the  principal  object. 
It  never  ought  to  be  suffered  so  as  to  con- 
tradict or  explain  away  an  explicit  agree- 
ment, for  that  is,  in  effect,  to  vary  it." 

In  Kennaway  v.  Treleaven,  5  M.  &  W. 
498,  where  the  guarantee  was  in  the  fol- 
lowing language  :  "I  hereby  guarantee  to 
you  the  sum  of  £250,  in  case  P.  should  de- 
fault in  his  capacity  of  agent  and  traveller 
to  you,"  it  was  held  to  sufficiently  show  the 
consideration  ;  it  being  held  to  be  perfectly 
clear  from  the  words  that  the  parties  were 
contemplating  a  future  default  to  be  com- 
mitted by  P.,  in  the  capacity  of  agent  and 
traveller  ;  and  that,  consequently,  it  must 
have  been  their  intention  that  he  should 
be  employed  in  that  capacity  at  some  fu- 
ture period.  And  see  Newbury  v.  Arm- 
strong, 6  Bing.  201,  where  the  guarantee 
was  in  these  terms  :  "I  agree  to  be  secur- 
ity to  you  for  T.  C  for  whatever,  while 
in  your  employ,  you  may  trust  him  with, 
and  in  case  of  default  to  make  the  same 
good,"  and  the  guarantee  was  held  good  ou 
the  ground  that  the  future  employment  of 
T.  C.  was  a  sufficient  consideration,  and 
that  this  sufficiently  appeared  on  the  face 
of  the  guarantee.  But  in  Cole  v.  Dyer, 
1  C.  &  J,  461,  where  the  guarantee  showed 
simply  a  promise  to  pay  the  debt  and  costs 
of  another  in  a  suit,  provided  the  amount 
was  not  paid  to  a  named  promisee  before  a 
named  date  ;  the  court  held  that  there  was 
no  sufficient  statement  in  the  writing  from 
which  tlie  consideration  could  be  inferred. 
In  Hawesr.  Armstrong,  1  Bing.  N.  C.  761, 
Tindal,  C.  J.,  said:  "There  must  be  a 
well-grounded  inference  to  be  necessarily 
collected  from  the  terms  of  the  memoran- 
dum, that  the  consideration  stated  in  the 
declaration,  and  no  other  than  such  con- 
sideration, was  intended  by  the  parties  to 
be  the  ground  of  the  promise."  In  Raikes 
V.  Todd,  1  Per.  &  D.  438,  the  guarantee 
was  :  "I  hereby  undertake  to  secure  to 
you  the  payment  of  any  sums  of  money 


1  14  How.  446,  454. 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM    IN   WRITING. 


571 


ute,  which  is  substantially  the  same  as  section  17  of  29  Car.  2,  c.  3, 
that  the  word  "  bargain  "  in  the  statute  means  the  terms  iipomvhich 
the  respective  parties  contract ;  and  in  the  sale  of  goods  the  terms 
of  the  bargain  must  be  specified  in  the  note  or  memorandum,  and 
stated  with  reasonable  certainty,  so  that  they  can  be  understood 
from  the  writing  itself,  without  having  recourse'  to  parol  proof ; 
for,  "unless  the  essential  terms  of  the  sale  [which  means,  of 
course,  all  the  terms  of  the  sale]  can  be  ascertained  from  the 
writing  itself,  or  by  a  reference  contained  in  it  to  something  else, 
the  memorandum  is  not  a  compliance  with  the  statute."  ^ 


you  have  advanced  or  may  hereaftei'  ad- 
vance to  D.  &  Co.,  on  their  account  with 
you,  commencing  Nov.  1,  1831,  not  ex- 
ceeding £2000  ;  "  and  it  was  held  that  no 
consideration  for  the  past  advances  was 
stated,  and  that  the  actual  consideration 
was  uncertain,  as  the  word  "secure" 
would  imply  that  forbearance  was  the  con- 
sideration, while  it  was  open  to  be  con- 
tended that  the  future  advances  were  the 
consideration  for  guaranteeing  the  past 
advances.  To  satisfy  the  statute,  the  con- 
sideration must  directly  appear,  or  be 
reasonably  inferred  from  the  language 
used.  But  mere  conjecture  is  not  suffi- 
cient ;  there  must  be  reasonable  certainty. 
Very  much  the  same  uncertainty  exists  in 
Ex  -parte  Minet,  14  Ves.  189,  as  in  Raikes 
V.  Todd,  1  Per.  &  D.  438,  as  to  the  suffi- 
ciency of  the  statement  of  the  considera- 
tion. The  question,  however,  went  off  on 
another  point.  See  further,  Mason  v, 
Pritchard,  12  East.  227  ;  Russell  ■!;.  Mosely, 
3  Br.  &  B.  211  ;  Jenkins  v.  Reynolds,  3 
Br.  &  B.  14  ;  Wood  v.  Benson,  2  C.  &  J. 
94  ;  Hawes  v.  Armstrong,  1  Bing.  N.  c. 
761  ;  James  v.  Williams,  5  B.  &  Ad.  1109  ; 
Ryde  v.  Curtis,  8  D.  &  Ry.  62  ;  Thomas 
V.  Williams,  10  B.  &  C.  664  ;  James  v. 
Williams,  3  X.  k  M.  196  ;  Cole  v.  Duf- 
field,  7  J.  B.  Moore,  252  ;  Bainbridge  v. 
Wade,  16  Q.  B.  89  ;  Steele  v.  Hoe,  14 
Q.  B.  431  ;  Lysaht  v.  Walker,  5  Bli.  N.  s. 
1  ;  Rogers  v.  Kneeland,  10  Wend.  218  ; 
13  Wend.  114  ;  Laing  v.  Lee,  1  Spencer, 
337.  Where  the  writing  shows  that  there 
is  a  contract  of  some  kind,  but  does  not 
.show  what  that  contract  is,  the  statute  is 
not  satisfied.  Archer  v.  Baynes,  5  Ex. 
625. 

^  This  case  in  the  Supreme  Court  of 
the  United  States,  very  correctly  shows 
that  there  is  no  distinction  between  the 
4th  and  17th  sections  of  the  statute  ;  but 
that  all  the  essential  terms  of  the  agree- 
ment, contract,  or  bargain  have  to  be 
shown  by  the  writing  as  well  under  the 
17th  section  as  the  4th.  Tlie  unfortunate 
intimation  of  Lord  Ellenborongh,  however, 
in  Egerton  v.  Mathews,  6  East,  307,  tliat 


"  agreement  "  under  the  4th  section  meant 
something  more  than  "bargain"  under 
the  17th,  although  not  acted  ujion  either 
in  that  case  itself  or  in  any  other  English 
case  succeeding  it,  has  been  stated,  as 
though  it  were  a  fact,  by  counsel  in  a 
number  of  the  English  cases,  as  well  as  by 
highly  respectable  text-writers  in  England 
and  America.  A  similar  statement  is  also 
made  in  an  early  New  York  case,  by  the 
chancellor.  Fisher  v.  Fields,  10  Johns. 
495,  501.  The  only  authority,  however, 
for  that  was  the  dictum  of  Lord  Ellenbor- 
ongh, in  Egerton  v.  Mathews,  6  East,  307, 
which,  subsequently,  was  not  recognized 
by  himself.  Stadt  v.  Lill,  9  East,  348, 
compared  with  Wain  v.  Warlters,  5  East, 
10,  and  Egerton  v.  Mathews,  6  East,  307. 
The  language  of  the  chancellor,  in  Fislier 
V.  Field,  10  Johns.  495,  501,  is:  "The 
construction  of  the  4th  section  of  the  Eng- 
lish statute  has  been  given  in  the  case  of 
Wain  V.  Warlters,  5  East,  10,  that  the 
consideration  is  part  of  the  agreement,  and 
the  whole  agreement  must  be  set  forth. 
The  doctrine  of  nudum  pactum  is  there 
said  not  to  be  altered  by  the  statute,  for 
it  did  not  mean  to  enforce  any  jiromisenot 
valid  before.  The  consideration  might  be 
illegal,  or  the  ])romisc  might  have  been 
made  on  a  condition  precedent.  The  stat- 
ute requires  the  agreement  to  be  in  writ- 
ing, but  here  there  is  no  consideration 
which  must  be  part  of  the  agreement,  to 
support  it.  The  .  olidity  of  this  reasoning 
has  since  been  admitted  and  enforced,  and 
distinguished  from  tlie  17tli  section  of  the 
statute."  Champion  v.  Pluninn  r.  1  B.  & 
P.  N.  K.  252,  is  also  cited  for  this.  I'lUt 
that  case  does  not  sustain  any  sucli  dis- 
tinction. The  marginal  note  of  the  case 
would  go  to  the  extent  even  that,  under 
the  17th  section,  the  mutuality  must  also 
appear  by  the  writing,  it  being  tlurc  stated 
that,  on  a  .sale  of  goods,  the  note  of  the 
contract  must  he  .signed  not  only  by  the 
party  to  be  charged,  l)ut  by  the  otlier  j.arty 
as  well.  And,  in  the  .statement  of  facts, 
it  is  alleged  that,  in  an  action  for  I  lie  non- 
delivery of  good.s,    Lord    Mansfield    nou- 


572 


COMMENTARIES   ON   SALES. 


[book  IV. 


The  principles  of  law  are  well  and  accurately  stated  by  South- 
ard, J.,  in  an  old  case  (a.  d.  1819)  in  New  Jersey,  Bucklee  v. 
Beardslee,^  in  the  following  propositions :  — 

1.  A  promise  without  a  consideration  is  void,  and  the  mere  cir- 


suited  the  purchasers  because  they  had  not 
also  signed  the  writing.  Rut  the  mar- 
ginal note  is  unquestionably  wrong  ;  and 
we  doubt  if  Lord  Mansfield  ever  so  de- 
cided as  alleged,  even  at  nisi  prius.  What 
he  did  decide,  delivering  the  unanimous 
judgment  of  the  full  court,  on  discharging 
a  rule  to  set  aside  the  nonsuit,  was,  in 
effect,  that  as  the  note  in  writing  must 
show  what  the  whole  contract  or  bargain 
is  ;  a  writing,  not  that  was  not  signed  by, 
but  which  does  not  show  who  are,  the 
contracting  parties,  does  not  satisfy  the 
statute. 

The  effect  of  Lord  Mansfield's  language 
in  Champion  v.  Plummer,  1  B.  &  P.  N. 
R.  252,  254  (which  was  decided  in  the 
Court  of  Common  Pleas,  A.  D.  1805,  virtu- 
ally concurrently  with  the  decision  of 
Egertoii  v.  Mathews,  6  East,  307,  in  the 
King's  Bench),  goes  in  effect  to  show 
that,  under  the  17th  section,  all  the 
essential  elements  of  the  contract  or  bar- 
gain must  appear  by  the  writing,  or  other- 
wise the  writing  does  not  show  what  the 
contract  or  bargain  is.  The  language  of 
Lord  Mansfield  is:  "How  can  that  be 
said  to  be  a  contract,  or  memorandum  of  a 
contract,  which  does  not  state  who  are  the 
contracting  parties  ?  By  this  note  it  does 
not  at  all  appear  to  whom  the  goods  were 
sold.  It  would  prove  a  sale  to  any  other 
person  as  well  as  to  the  plaintiffs.  There 
cannot  be  a  contract  without  two  parties  ; 
and  it  is  customary  in  the  course  of  busi- 
ness to  state  the  name  of  the  purchaser  as 
well  as  of  the  seller  in  every  bill  of  parcels. 
This  note  does  not  appear  to  me  to  amount 
to  any  memorandum  in  writing  of  a  bar- 
gain." The  note  in  Champion  v.  Plummer, 
1  B.  &  P.  N.  R.  252,  did  not  state  the 
names  of  purchasers  at  all ;  so  there  was 
nothing  in  the  note  to  show  to  whom  the 
goods  were  sold  ;  and,  therefore,  although 
there  was  a  note  signed  by  the  party  whom 
it  was  sought  to  charge,  it  was  not  a  note 
of  the  contract,  as  it  did  not  show  who 
the  contracting  parties  were.  It  was, 
therefore,  although  showing  the  seller, 
the  subject-matter,  and  the  consideration, 
still  deficient,  as  one  of  the  essential  ele- 
ments of  a  contract,  viz.,  the  other  party 
to  it,  was  not  shown  by  the  writing. 
Although  the  actual  holding  in  the  case  is 
so  clear,  yet  not  only  is  the  marginal  note 
of  the  case  incorrect,  but,  in  a  foot  note 
to. the  second  edition  of  the  report,  it  is 


said  :  "  But  it  seems  that  a  contract  for 
sale  of  an  interest  in  land  need  only  be 
signed  by  the  party  sought  to  be  charged 
thereby  under  the  4th  section  of  the  statute 
of  frauds.  Vide  Seton  v.  Slade,  7  Ves.  275, 
and  what  is  said  of  that  case  by  Lord  Ellen- 
borough  in  Waini;.  Warlters,  5  East,  16." 
The  implication  here  is  that,  under  the 
17th  section,  the  mutuality  must  also  be 
shown  by  the  writing,  but  that  it  need 
not  be  under  the  4th ;  just  making  the 
very  reverse  mistake  of  that  of  Lord 
Ellenborough  in  his  first  impression  in 
Egerton  v.  Mathews,  6  East,  307. 

As  illustrative  of  the  ease  with  which 
blunders  are  perpetuated,  we  find  in  Mer- 
litt  V.  Clason,  12  Johns.  102,  104,  it  is 
alleged  that  "  In  Champion  v.  Plummer, 
1  B.  &  P.  N.  R.  252,  it  was  held  that  a 
memorandum  signed  by  the  seller  only 
was  not  sufficient  ; "  while,  as  we  have 
shown,  all  that  was  held  in  that  case  was, 
not  that  the  signing  alone  of  the  seller, 
who  was  the  party  whom  it  was  sought  to 
charge,  was  not  sufficient  to  bind  him, 
but  that,  though  the  writing  was  signed 
by  him,  yet,  as  it  did  not  show  who  the 
other  party  to  the  contract  was,  not  men- 
tioning or  referring  to  him  at  all,  one  of 
the  essential  elements  of  a  contract  was 
wanting  in  the  writing  ;  and,  therefore, 
there  was  no  note  or  memorandum  in 
writing,  signed  by  the  party  to  be  charged, 
of  the  contract  or  bargain.  See,  with 
reference  to  the  mistake  as  to  the  holding 
in  Champion  v.  Plummer,  1  B.  &  P.  N.  R. 
252  ;  per  Lord  Mansfield  in  Allen  v.  Ben- 
net,  3  Taunt.  169  ;  and  in  Clason  v. 
Bailey,  14  Johns.  487,  concurring  with 
the  view  of  it  which  we  have  taken. 

It  is  noteworthy  that,  whatever  Lord 
Eldon's  impression  may  have  been  as  to 
the  necessity  of  the  consideration  appear- 
ing in  the  writing,  under  the  clause  in  the 
4th  section  as  to  the  special  promise  to 
pay  the  debt  of  another,  referred  to  by 
him  in  Ex  part^  Gardom,  15  Ves.  287,  in 
A.  D.  1800,  and  several  years  before  either 
Wain  V.  Warlters,  5  East,  10,  or  Egerton 
V.  Mathews,  6  East,  307,  was  decided, 
Lord  Eldon  himself,  in  Saunderson  v. 
Jackson,  2  B.  &  P.  238,  in  effect  held 
that,  under  the  17th  section  of  the  stat- 
ute, a  writing  "  which  does  not  state  the 
terras  of  the  agreement,"  which  means,  of 
coui-se,  the  whole  terms  of  the  agreement, 
does  not  satisfy  the  statute.     The  same 


1  2  South.  (JT.  J.)  570,  572. 


PART   VIII.]        THE   NOTE   OR  MExAIORANDUM   IN    WRITING. 


573 


cumstance  that  it  is  reduced  to  writing,  if  there  be  no  considera- 
tion, does  not  make  it  valid. 


doctrine  was  established,  too,  witli  lespect 
to  the  sale  of  laud,  under  the  4th  section 
of  the  statute,  long  before  Wain  v.  Warl- 
ters,  5  East,  10,  was  decided  under 
another  clause  of  that  section.  See  Sea- 
good  V.  Meale,  Prec.  in  Ch.  560.  These 
decisions  were  based  on  the  general  doc- 
trine that  the  whole  agieement  must, 
under  all  the  clauses  of  the  4th  section, 
and  equally  so  the  whole  bargain  under 
the  17  th  section,  be  evidenced  by  the 
writing.  See  Clark  v.  Wright,  1  Atk. 
12  ;  Boydell  v.  Drummond,  11  East,  142; 
Tawneyi).  Crowther,  3  Bro.  Ch.  Cas.  318  ; 
Syniondson  v.  Tweed,  Prec.  in  Ch.  374  ; 
Gilb.  Eq.  Cas.  35  ;  Bromley  v.  Jeffries,  2 
Veru.  415  ;  Underwood  v.  Hithcox,  1 
Ves.  Jr.  279.  Abeel  v.  Radcliffe,  10  Johns. 
297,  301,  is  in  accord.  So,  in  Clason  v. 
Bailey,  14  Johns.  487,  the  court  said  : 
"  Forms  are  not  regarded,  and  the  statute 
is  satisfied  if  the  terms  of  t/ie  contract  are 
in  writing,  and  the  names  of  the  contract- 
ing parties  appear."  In  this  case  the 
question  arose  under  the  17th  section  of 
the  statute. 

In  Peltier  v.  Collins,  3  Wend.  459, 
465,  it  was  contended  that,  under  the  15th 
section  of  the  New  York  statute,  which 
is  similar  to  the  English  17th  section,  all 
that  was  required  was  a  7iote  or  memo- 
randum of  the  bargain  ;  that  the  con- 
sideration need  not  be  .stated,  nor  anything 
beyond  the  fact  of  a  sale  ;  and  that  the 
particulars  of  the  agreement  might  be 
proved  by  parol,  it  being  claimed  that  it 
differed  from  an  agreement  under  the 
English  4th  section,  —  the  New  York  11th, 
—  as  there  the  agreement  has  to  be  shown 
by  the  writing.  See  Weightman  v.  Cald- 
well, 4  Wheat.  91,  n.,  for  another  instance 
of  this  fallacy.  But  the  court,  in  Peltier 
V.  Collins,  2  Wend.  459,  465,  in  deciding 
that  a  warranty  of  the  quality  of  the 
goods  as  an  essential  element  in  a  con- 
tract, under  the  New  York  15th  section, 
must  appear  in  the  writing  to  satisfy  the 
statute,  said:  "If  parol  evidence  were 
permitted  to  show  terms  and  conditions  in 
a  contract,  other  than  such  as  are  specified 
in  the  memorandum,  all  the  mischiefs 
would  result  from  such  a  rule  that  would 
be  the  consequence  of  a  total  abolition  of 
the  statute.  The  object  of  the  memo- 
randum is  not  merely  to  prove  that  there 
was  a  bargain,  but  to  show  what  the  bar- 
gain iccis,  at  least  the  extent  and  entirety 
of  the  consideration  for  the  promise  on 
which  the  suit  is  brought."  It  almost 
pas.ses  com])rehension  that  courts  of  com- 
parative resyiectability  should  have  held 
contra  to  this  virtually  self-evident,  sim[)le 


proposition,  for  three  quarters  of  a  centur}'-, 
as  in  Massachusetts,  Maine,  etc.  Yet 
such,  however,  has  been  the  case.  See 
per  BuUer,  J.,  in  Brodie  v.  St.  Paul,  1 
Ves.  Jr.  326,  333  (a.d.,  1791,  thirteen 
years  before  Wainr.  Warlters,  5  East,  10, 
which  preceded  Egerton  v.  Mathews,  6 
East,  307,  and  Stadt  v.  Lill,  9  East,  348, 
was  decided)  :  "If  the  agreement  is  cer- 
tain, and  explained  in  writing,  signed  by 
the  [larties,  that  binds  them  ;  if  not,  and 
evidence  is  necessary  to  prove  what  the 
terms  were,  to  admit  it  would  efi'ectually 
break  in  upon  the  statute,  and  introduce 
all  the  mischief,  inconvenience,  and  un- 
certainty the  statute  was  designed  to 
prevent."  See,  also.  First  Baptist  Church 
V.  Bigelow,  16  Wend.  28,  31  ;  Hicks  v. 
Mintum,  19  Wend.  550,  552  (as  to  the 
note  of  the  sale  by  an  auctioneer,  under 
the  New  York  statute,  2  K.  S.  p.  136, 
§  4)  ;  Calkins  v.  Falk,  39  Barb.  620,  622, 
et  seq. ;  38  How.  Pr.  62  ;  Hagan  v.  Domes- 
tic Sewing  Machine  Co.  9  Hun,  73 ; 
Douglass  V.  Howland,  24  Wend.  35. 

.  But  a  consideration  implied  or  inferred 
from  the  terms  of  the  instrument  is  as 
effectual  as  if  expressly  ap])eariiig  on  its 
face  ;  it  being  a  general  principle  ajjplica- 
ble  to  all  instruments  or  agreements,  that 
whatever  may  be  fairly  implied  from  the 
terms  or  language  of  an  instrument  is  in 
judgment  of  law  contained  in  it.  Kogers 
V.  Kneeland,  10  Wend.  219,  252  ;  13 
Wend.  114,  127  ;  DeWolf  v.  Rabaud,  1 
Pet.  476,  501.  But,  under  the  New  York 
statute  (2  R.  S.  p.  135,  §  2,  cl.  2),  which 
provided  that  the  consideration  must  be 
expressed  in  the  writing,  it  was  held  that 
it  could  not  be  implied,  inferred,  or  spelt 
out  from  the  writing,  but  must  expressly 
appear  in  it.  Packer  v.  Wilson,  15  Wend. 
343  ;  Sackett  v.  Palmer,  25  Wend.  179, 
183.  See  Church  v.  Brown,  21  N.  Y. 
315  ;  Union  Bank  v.  Coster's  Exrs.,  3 
Comst.  203  ;  Allen  v.  Jaquish,  21  Wend. 
628.  By  act  of  1863,  c.  464,  the  words 
"  expressing  the  consideration  "  were  omit- 
ted from  the  New  York  act.  It  was  licld 
in  the  New  York  Superior  Court,  under 
this  act,  in  Sjicyers  v.  Lambert,  37  How. 
Pr.  315,  323,  that  it  was  the  intention  of 
the  legislature  to  enact  that  the  writing 
need  not  only  not  express  the  considera- 
tion, but  that  the  note  or  mcMioraiiduni  in 
writing  was  sullicient,  tlidugli  the  cnn- 
sidenition  could  not  bo  "  exprcsseil,  im- 
plied, or  sjielt  out  "  from  tlie  writing,  as  it 
had  been  i)revioiiHly  held  that  it  might 
be.  Packers.  Wilson,  15  Wend.  3J3.  Hut 
Speyers  i;.  Laml)ert,  37  How.  Pr.  315,  wiw 
expressly  overruled  by  the  Supreme  Court 


574 


COMMENTARIES   ON   SALES. 


[book  IV. 


2.  The  design  of  the  statute  was  not  to  prevent  contracts,  void 
for  want  of  consideration,  from  being  sustained  in  courts  of  jus- 


of  New  York,  in  Castle  v.  Beardsley,  10 
Hun,  343,  346,  where  it  was  decided 
that  the  effect  of  the  act  of  1863  was  to 
restore  the  law  as  it  was  before  the  re- 
vision of  1830,  and  to  remove  the  doubts 
which  had  arisen  as  to  the  construction  of 
the  act  of  1830  ;  the  court  saying  :  "  The 
only  inference  as  to  the  intention  of  the 
legislature  in  the  amendment  of  1863 
which  can  be  safely  drawn  from  the  act 
then  passed,  is,  we  think,  that  the  legis- 
lature intended  to  restore  the  law  to  what 
it  was  settled  to  be  before  the  omitted 
words,  which  had  given  rise  to  controversy 
and  uncertaint3%  had  been  inserted.  Tiiis 
is  plainly  what  the  legislature  did,  and  to 
hold  that  it  intended  to  simi)]y  restore  the 
law  to  what  it  was  before  the  omitted 
words  were  inserted.  But  to  go  further, 
and  abrogate  the  necessity  of  having  that 
part  of  the  agreement  relating  to  the  con- 
sideration in  writing,  like  the  residue,  we 
think  is  unwarranted  by  any  sound  and 
safe  rule  in  the  interpretation  of  statutes, 
and  would  approach  the  assumption  of 
legislative  power  by  the  court."  So  the 
statute  and  law  of  New  York  are  now,  in 
effect,  as  under  the  29  Car.  2,  c.  3,  and 
the  statute  of  frauds  of  New  York,  before 
the  revision  of  1830.  Hence,  in  Castle 
r.  Beardsley,  10  Hun,  343,  where  there 
was  a  promise  in  writing,  signed  by  the 
defendant,  promising  to  pay  the  debt  of 
another ;  but  as  no  consideration  was  ex- 
pressed in  the  writing,  or  could  be  fairly 
inferred  from  it,  it  was  held  that  the 
promise  was  void  ;  that,  in  the  language 
of  Talcott,  J.,  delivering  the  unanimous 
judgment  of  the  court,  "It  was  a  mere 
naked  promise  to  answer  for  the  debt  of 
another,  and  manifestedly  void  by  the 
statute  of  frauds,  if  that  statute  requires, 
as  we  hold  it  does,  that  the  consideration, 
as  well  as  the  promise,  should  appear  by 
agreement  in  writing." 

It  was,  however,  held,  in  the  old  and 
quite  leading  case  of  Leonard  v.  Vreden- 
burgh,  8  Johns.  29,  where  goods  were  sold 
to  one  Johnson  by  the  plaintiff,  who  took 
Johnson's  promissory  note  therefor  ;  the 
defendant,  as  a  part  of  the  original  trmis- 
action,  indorsing  on  the  note,  "I  guaranty 
the  above,"  which  he  signed  ;  that,  al- 
though this  was  a  collateral  undertaking 
on  the  part  of  the  defendant  to  pay  the 
debt  of  another,  yet  the  consideration  for 
the  note  was  suflBcient  to  sustain  the  guar- 
anty, without  its  being  definitely  expressed 
in  the  writing.  The  case  is  so  valuable  on 
the  subject,  we  quote  from  it  at  length. 
It  was  tried  before  Kent,  C.  J.,  and,  at 
the  trial,  he  nonsuited  the  plaintiff.     But, 


on  further  consideration,  the  view  of  that 
able  judge  changed,  and,  in  delivering  the 
unanimous  judgment  of  the  Supreme  Court 
of  New  York,  he  said  :  — 

"There  is  no  doubt  that  this  was  a  col- 
lateral undertaking,  within  the  purview 
of  the  statute  of  frauds  ;  for  Johnson's 
note  is  conclusive  proof  that  credit  was 
given  to  him,  and  that  he  was  liable  to 
the  plaintiff.  If  the  whole  credit  is  not 
given  to  the  person  who  comes  in  to  an- 
swer for  another,  his  undeitaking  is  col- 
lateral. I  have  not  been  altogether  satis- 
fied with  the  decisions  referred  to,  but  it 
appears  to  me  that  the  present  motion  can 
be  determined  in  favor  of  the  plaintiff 
without  disturbing  them  ;  and,  perhaps, 
the  examination  which  I  may  give  to  the 
cases  upon  the  statute  of  frauds  may  help 
to  illusti-ate  the  reasonableness  of  those 
decisions. 

"  If  we  admit  the  origin  of  the  contract 
to  be  such  as  the  plaintiff  offered  to  show, 
there  was  no  necessity  for,  nor  was  there, 
in  fact,  any  consideration  passing  directly 
between  the  plaintiff  and  defendant ;  and, 
of  course,  none  was  to  be  proved.  It  was 
all  one  original  and  entire  transaction,  and 
the  sale  and  delivery  of  the  goods  to  John- 
sou  supported  the  promise  of  the  defend- 
ant, as  well  as  the  promise  of  Johnson.  If 
the  contract  between  Johnson  and  the 
plaintiff  had  been  executed  and  perfectly 
past,  before  the  defendant  wiis  applied  to, 
so  that  his  promise  could  not  connect  it- 
self with  the  original  communication,  then 
the  case  would  have  been  very  different, 
and  the  undertaking  of  the  defendant  would 
have  required  a  distinct  consideration.  A 
mere  naked  promise  to  pay  the  already  ex- 
isting debt  of  another,  without  any  con- 
sideration, is  void.  But  in  tlie  present 
case,  the  promise  was  made  at  the  time  of 
the  original  negotiation  between  the  plain- 
tiff and  Johnson.  It  was  incorporated 
with  that  contract,  and  became  an  essen- 
tial branch  of  it.  The  whole  was  one  sin- 
gle bargain,  and  the  want  of  consideration, 
as  between  the  plaintiff  and  defendant, 
cannot  be  alleged.  If  there  was  a  con- 
sideration for  the  entire  agreement  (and 
Johnson's  note,  purporting  to  be  given  for 
value  received,  was  evidence  of  it),  that 
consideration  was  the  aliment  for  the  de- 
fendant's promise.  This  is  the  amount  of 
the  doctrine  in  Kirby  v.  Coles,  Cro.  Eliz. 
137  ;  and  it  is  alluded  to  in  Tomlinson  v. 
Gill,  Amb.  330,  and  Williams  v.  Leper, 
3  Burr.  1886  ;  and  to  this  extent  I  can 
understand  the  observation  of  Lord  Eldon 
(14  Ves.  190),  when  he  observes,  that 
'  the  undertaking  of  one  man  for  the  debt 


PART  VIII.]        THE    NOTE   OR   MEMORANDUM   IN   WRITING. 


575 


tice.  Such  contracts  were  not  sustained  before  the  statute  was 
made,  and  it  was  more  than  useless  to  say  that  they  should  not 
be  enforced. 


of  another  does  not  require  a  consideration 
nioving  between  theui.'  In  Wain  v.  Warl- 
ters,  5  East,  10,  the  promise  of  the  de- 
fendant was  not  made  at  the  time,  nor  did 
it  form  a  part  of  the  original  contract  be- 
tween the  creditor  and  tlie  third  person. 
It  was  made  long  after  the  debt  had  been 
created,  and,  therefore,  in  that  case,  the 
promise  required  something  more  to  sup- 
port it  than  the  mere  fact  of  the  liability 
of  the  person  for  whom  the  defendant  as- 
sumed. That  fact  alone  would  have  left 
the  promise  a  nude  pact.  It  required,  at 
least,  the  consideration  of  forbearance,  or 
some  other  consideration,  arising  out  of, 
and  founded  upon,  the  original  liability. 
The  same  remark  applies  to  the  case  of 
Sears  v.  Brink,  3  Johns.  210.  But,  if  a 
promise  to  pay  the  debt  of  another  be 
founded  on  a  new  and  distinct  considera- 
tion, independent  of  the  debt,  and  one 
moving  between  the  parties  to  the  new 
promise,  it  is  not  a  case  within  the  stat- 
ute. It  is  considered^  in  the  light  of  an 
original  promise.  The  cases  of  Tomlinson 
V.  Gill,  Amb.  330,  and  Williams  v.  Leper, 
3  Burr.  1886,  proceed  upon  this  distinc- 
tion, and  the  point  is  too  clearly  settled 
to  be  questioned. 

"There  are,  then,  three  distinct  classes 
of  cases  on  this  subject,  which  require  to 
be  discriminated  :  1.  Cases  in  which  the 
guaranty  or  promise  is  collateral  to  the 
principal  contract,  but  is  made  at  the  same 
time,  and  becomes  an  essential  ground  of 
the  credit  given  to  the  principal  or  direct 
debtor.  Here,  as  we  have  already  seen, 
is  not,  nor  need  be,  any  other  considera- 
tion than  that  moving  between  the  cred- 
itor and  original  debtor.  2.  Cases  in 
which  the  collateral  undertaking  is  sub- 
sequent to  the  creation  of  the  debt,  and 
was  not  the  inducement  to  it,  though  the 
subsisting  liability  is  the  ground  of  the 
promise,  without  any  distinct  and  uncon- 
nected inducement.  Here  must  be  some 
further  consideration  shown,  having  an 
immediate  respect  to  such  liability,  for 
the  consideration  for  the  original  debt 
will  not  attach  to  this  subsi-queut  prom- 
ise. The  cases  of  Fish  v.  Hutchinson,  2 
Wils.  94  ;  of  Charter  v.  Beckett,  7  T.  R. 
201,  and  of  Wain  v.  Warlters,  5  East,  10, 
are  samples  of  this  class  of  cases.  3.  A 
third  class  of  cases,  and  to  which  I  have 
already  alluded,  is  when  the  promise  to 
pay  the  debt  of  another  arises  out  of  some 
new  and  original  consideration  of  benefit 
or  harm  moving  between  the  newly  con- 
tracting parties.  The  first  two  classes  of 
cases  are  within  the  statute  of  frauds,  but 


the  last  is  not,  1  Saund.  211,  n.  2.  The 
case  before  us  belongs  to  the  first  class  ; 
and  if  there  was  no  consideration  other 
than  the  original  transaction,  the  plaintiif 
ought  to  have  been  permitted  to  show  that 
fact,  if  necessary,  by  parol  proof ;  and  the 
decision  in  Wain  v.  Warlters,  5  East,  10, 
did  not  stand  in  the  way.  The  whole 
agreement  between  the  plaintiff'  and  de- 
fendant consisted  in  the  promise  to  guar- 
anty the  debt  of  Johnson.  To  say  that 
the  promise  is  void,  for  want  of  disclosing 
a  consideration,  is  assuming  what  the 
plaintiff  offered  to  show  ought  not  to  be 
assumed,  for  there  was  no  distinct  consid- 
eration passing  between  the  plaintitl'  and 
the  defendant.  Johnson's  note  given  for 
value  received,  and,  of  course,  importing  a 
consideration  on  its  face,  was  all  the  cmi- 
sideration  requisite  to  be  shown.  The  pa- 
per disclosed  that  the  defendant  guaran- 
tied this  debt  of  Johnson  ;  and  if  it  was 
all  one  transaction,  the  value  received  was 
evidence  of  a  consideration  embracing  both 
the  promises.  The  writing  imported,  upon 
the  face  of  it,  one  original  and  entire 
transaction  ;  for  a  guaranty  of  a  contract 
implies,  ex  vi  termini,  that  it  was  a  con- 
current act,  and  part  of  the  original  agree- 
ment. In  Stadt  V.  Lill,  9  East,  348,  the 
defendant  gave  a  guaranty  in  this  form  : 
'  I  guaranty  the  payment  of  any  goods 
which  Stadt  delivers  to  Nichols  ; '  and  the 
King's  Bench  held  that  '  the  stipulateil 
delivery  of  the  goods  to  Nichols  was  a 
consideration  appearing  on  the  face  of  the 
writing,  and  when  the  delivery  took  i)lace 
the  consideration  attached.'  T]u>  wiiting 
in  the  present  case  was  of  equivalent  im- 
port and  effect.  Instead  of  saying  that  he 
guarantied  the  payment  of  goods  delivered 
to  Johnson,  the  defendant  guarantied  tin- 
payment  of  the  value  received  by  Joiiiison. 
I'pon  the  whole,  we  think  that  the  jilain- 
tirt'  was  entitled  to  recover,  ujujn  produc- 
tion and  proof  of  the  writing.  But  if 
there  was  any  doubt,  ujion  the  face  of  tlie 
paper,  whether  the  promise  of  Johnson 
and  that  of  the  defendant  were  or  were 
not  concurrent,  and  one  and  tlie  .same 
communication,  the  parol  proof  was  ad- 
missible to  show  that  fact." 

The  effect  of  Leonard  v.  Vrendcrbnrph, 
8  Johns.  29,  really  is,  that  when  n  promise 
or  guaranty  to  ]>ay  the  debt  of  another, 
within  the  statute  of  fuiuds,  is  part  of  an 
original  contract,  and  tin'  pnmiiHc  m  giiur- 
anty  is  signed  by  the  party  to  be  chargeij, 
and  the  consiileration  is  expresseil,  or  is 
fairly  to  be  implied  in  tlie  writing  con- 
nected with  which  the  written  promifc  or 


576 


COMMENTARIES   ON   SALES. 


[book  IV. 


3.  The  design  of  the  statute  was  to  prevent  the  enforchig  of 
contracts,  not  void,  but  legal  in  their  nature,  for  the  payment  of 


guaranty  is  given,  the  case  is  taken  out 
of  the  statute.  But  if  the  guaranty  or 
promise  is  subsequent  to  the  original  con- 
tract, and  not  a  part  of  it,  so  that  the 
original  consideration  does  not  attach  to 
the  guaranty  or  promise,  there  the  new 
consideration,  in  order  to  show  the  agree- 
ment, must  appear  directly  in,  or  by  neces- 
sary inference  from,  the  written  statement 
of  the  guaranty  or  promise  itself.  Thus 
stated,  the  case  is  in  harmony  with  other 
well-decided  cases  on  the  statute. 

With  reference  to  the  third  class  of 
cases  of  which  Kent,  C.  .J.,  speaks  in  the 
above,  which  do  not  come  within  the 
statute  as  the  promise  to  pay  the  debt 
of  another,  although,  in  fact,  the  promise 
incidentally  is  to  pay  such  a  debt,  —  and 
of  which  class  such  cases  as  Williams  v. 
Leper,  3  Burr.  1836  ;  Meredith  v.  Short, 
Salk.  25  ;  and  Castling  v.  Aubert,  2  East, 
324,  are  illustrative  cases,  —  the  principle 
is,  that  where  there  is  a  new  considera- 
tion of  benefit  or  harm  moving  between 
the  newly  contracting  parties,  there  the 
case  is  not  within  the  statute,  as  the  con- 
tract is  a  complete  contract  between  the 
promisor  and  promisee,  supported  by  a 
sufficient  consideration  moving  between 
them.  Thus,  the  promise  to  pay  the  debt 
of  a  third  person  in  consideration  of  for- 
bearance to  sue,  or  giving  time,  to  the 
debtor,  is  a  perfectly  good  contract  at 
common  law,  supported  by  a  sufficient 
consideration ;  yet,  as  the  consideration 
moves  between  the  promisee  and  the 
debtor,  it  is  within  the  statute,  and  the 
promise  and  the  consideration  must  both 
appear  by  the  writing,  or  the  promisor  is 
not  bound,  —  as  in  Wain  v.  Warlters,  5 
East,  10  ;  in  Stadt  v.  Lill,  9  East,  348 ; 
and  in  many  other  cases.  But  where  A. 
promises  B.  to  pay  C.'s  debt,  if  B.  will 
surrender  to  A.,  C.'s  promissory  note,  or 
relinquish  to  him  property  of  C.  on  which 
A.  has  distrained  or  holds  a  lien,  there 
the  consideration  moves  between  the  prom- 
isor and  the  promisee,  —  as  in  Williams 
V.  Leper,  3  Burr.  1886,  and  the  other 
cases,  —  and  the  contract  is  an  original 
contract  between  A.  and  B.,  supported 
by  a  consideration  moving  between  them, 
and  the  promise  is  not  within  the  statute. 
In  Jones  v.  Palmer,  1  Doug.  (Mich.)  379, 
382,  the  court,  mistaking  the  law,  laid 
down  the  principle  incorrectly  thus  : 
"When  the  promise  is  made  upon  some 
new  consideration  sufficient  in  law  to  sup- 
port it,  though  it  be  in  effect  to  answer 
for  another  person,  it  is  considered  an 
original  promise,  and  not  within  the 
statute  of  frauds."     As  we  have  pointed 


out  above,  there  may  be  a  new  consid- 
eration sufficient  in  law  to  support  the 
promise,  and  yet  the  promise  be  merely 
collateral.  The  promise  is  original  when 
the  consideration  therefor  moves  between 
the  newly  contracting  parties, —  the  prom- 
isor and  promisee,  —  and  not  between 
the  old  contracting  parties,  —  the  creditor 
and  the  original  debtor.  When  the  con- 
sideration moves  between  the  creditor  and 
the  original  debtor,  the  promise  is  collat- 
eral, and  within  the  statute. 

And,  on  the  other  hand,  it  is  clear 
that,  to  bring  the  promise  to  answer  for 
the  debt,  default,  or  miscarriage  of  an- 
other, within  the  statute,  there  neces- 
sarily, by  the  very  language  of  the  act, 
must  be  that  other  for  whose  debt,  de- 
fault, or  miscarriage,  the  promise  is  made. 
As  if  one  promise  to  pay  for  work  to  be 
done,  the  benefit  of  which  is  to  be  derived 
by  another,  it  is  an  original,  and  not  a 
collateral,  promise,  on  the  part  of  the 
promisor,  where  no  other  than  himself  is 
liable  for  the  work.  The  contract  is  be- 
tween him  and  the  promisee  alone  ;  and, 
therefore,  is  not  within  the  statute  at  all, 
as  there  is  no  debt,  default,  or  miscarriage 
of  any  other  person  than  himself  ;  and  the 
contract,  therefore,  remains,  as  at  common 
law,  unaffected  by  the  statute.  This  point 
is  well  illustrated  by  the  very  clear  case  of 
Mountstephen  v.  Lakeman,  L.  R.  5  Q.  B. 
613.  There  the  plaintiff  wjis  employed  to 
construct  a  main  sewer  by  a  local  boai-d  of 
health,  of  which  the  defendant  was  chair- 
man. When  the  sewer  was  nearly  com- 
pleted, the  board  gave  notice  to  the  occu- 
piers of  the  adjoining  houses  to  connect 
their  drainage  within  twenty-one  days,  or 
the  board  would  do  the  work  at  their  ex- 
pense. Before  the  twenty-one  days  had 
elapsed,  the  plaintiff  and  the  defendant 
met.  The  defendant  inquired,  "  What 
objection  have  you  to  make  these  con- 
nections?" The  plaintiff  said,  "I  have 
no  objection  to  do  the  work,  if  you  or  the 
local  l)oard  will  give  the  order."  The  de- 
fendant replied,  "You  go  on  and  do  the 
work,  and  I  will  see  you  paid."  The 
plaintiff  accordingly  did  the  work  under 
the  superintendence  of  the  surveyor  of 
the  local  board,  and  sent  in  the  account 
to  the  board,  debiting  them  with  the 
amount.  The  board  refused  payment,  on 
the  ground  that  they  had  not  authorized 
the  order.  And  after  more  than  two  years, 
the  amount  being  still  unpaid,  the  plain- 
tiff made  a  claim  against  tlie  defendant, 
and  brought  an  action  agiiinst  him.  It 
was  held  by  the  Court  of  Queen's  Bench 
that,  coupling  the  expressions  used  with 


PART  VIII.]        THE   NOTE   OR  MEMORANDUM   IN   WRITING. 


677 


another's  debt,  unless  the  wJiole  contract  was  in  writing.     The  at- 
tempt to  enforce  such  contracts  gave  rise  to  perjury,  as  was  sup- 


the  position  and  conduct  of  the  par- 
ties, the  defendant's  engagement  did  not 
amount  to  an  undertaking  to  be  primarily 
liable  for  the  work,  but  only  to  a  promise 
that,  if  the  plaintiff  would  do  tlie  work 
on  the  credit  of  the  board,  the  defendant 
would  pay  if  the  board  would  not;  and 
that  this  was  a  promise  to  be  answerable 
for  the  debt  of  another  person  within  sec- 
tion four  of  the  statute,  although,  in  fact, 
the  board  never  became  indebted  ;  and 
that  the  promise,  not  being  in  writing, 
could  not  be  enforced.  This  holding 
would  have  established  the  rather  mon- 
strous proposition  that  a  promise  to 
be  answerable  for  the  debt,  default,  or 
miscarriage  of  another  person  is  within 
section  four  of  the  statute,  although  that 
other  person  never  becomes  legally  in- 
debted to  the  promisee  ;  that  it  is  suffi- 
cient, to  bring  the  promise  within  the 
statute  that,  at  the  time  the  promise  is 
made,  the  promisor  and  promisee  expect 
that  a  legal  obligation  towards  the  prom- 
isee will  be  incurred  by  a  third  person. 
The  Court  of  Queen's  Bench  were  unani- 
mous in  holding  this  doctrine.  The  fol- 
lowing, with  much  less  than  his  usual 
clear  discernment,  from  the  judgment  of 
Blackburn,  J.,  is  the  essence  of  the  deci- 
sion :  "I  think  that  the  statute  must  be 
taken  to  apply  to  any  contract  of  surety- 
ship where  there  is  an  intention  of  guar- 
anteeing the  payment  of  a  debt  of  another, 
and  to  require  a  writing  wherever  the  con- 
tract, according  to  the  intention  of  the 
parties,  is  a  contract  of  suretyship.  The 
enactment  was  aimed  against  what  the 
legislature  deemed  the  mischief  of  allow- 
ing a  person  to  be  fixed  with  liability  for 
another  by  loose  and  idle  talk  ;  and  the 
mischief,  as  it  seems  to  me,  would  be  just 
as  great  in  a  case  where  there  is  only  a 
.supposed  or  expected  liability  in  the  origi- 
nal debtor,  as  where  there  is  an  actual 
legal  liability  existing  or  afterwards  con- 
tracted. The  argument  for  the  plaintiff 
amounts  to  saying,  that  if  the  original 
debtor  shall  turn  out  not  liable,  the  surety 
shall  become  absolutely  liable,  although  he 
has  not  done  the  only  thing  which  the 
legislature  says  shall  fix  him  with  lia- 
bility. The  legislature  has  enacted  that 
a  contract  of  suretyship  shall  not  depend 
on  the  slippery  testimony  of  words  ;  but 
to  hold  with  the  plaintiff  would  be  to 
])ermit  the  very  mischief  intended  to  be 
n'medied."  The  court  seemed  entirely 
oblivious  of  the  fact  that,  outside  of  the 
promisor,  there  was  no  "original  debtor" 
at  all ;  and  hence  there  was  no  one  for 
whose  debt,   default,   or   miscarriage   the 


promise  was  made  ;  the  promisor  himself 
having  been  the  only  one  who  had  in- 
curred a  debt,  or  had  made  a  defaidt  or 
miscarriage  in  the  matter. 

As  long  ago  as  Harris  v.  Huntbach, 
1  Burr.  371  (a.  d.  1757),  the  opposite 
doctrine  was  established,  where  the  prom- 
ise to  pay  the  debt  of  an  infant  was  held 
to  be  an  original  undertaking  of  the  prom- 
isor to  pay  the  money  ;  as  the  infant  wajs 
not  liable,  and,  therefore,  it  could  not  be 
a  collateral  undertaking.  And  see  Birk- 
myr  v.  Darnall,  2  Ld.  Kaym.  1085,  and 
Read  i'.  Nash,  1  Wils.  305,  in  accord.  So 
in  Hargreaves  v.  Parsons,  13  M.  &  W,  561, 
570,  Parke,  B.,  in  delivering  the  judgment 
of  the  court,  said  :  "  The  statute  ajiplies 
only  to  promises  made  to  the  persons  to 
whom  another  is  already,  or  is  to  become, 
ansiverable.  It  must  be  a  promise  to  be 
answerable  for  a  debt,  or  a  default  in  some 
duty  by  that  other  person  toirards  the 
promisee.  This  was  decided,  and  no  doubt 
rightly,  by  the  Court  of  Queen's  Bench  in 
Eastwood  V.  Kenyon,  11  A.  &  E.  438  ;  and 
in  Thomas  v.  Cook,  8  B.  &  C.  728."  See 
also,  Goodman  v.  Chase,  1  B.  &  Aid.  297  ; 
Kirkham  v.  Marter,  2  B.  &  Aid.  613  ; 
Couturier  v.  Hastie,  8  Ex.  40  ;  Cripjis  v. 
Hartnoll,  4  B.  &  S.  414  ;  Green  v.  Cress- 
well,  10  A.  &  E.  453.  The  decision  of  the 
Court  of  Queen's  Bench  in  the  case  of 
Mountstephen  v.  Lakeman,  L.  R.  5  Q.  B. 
613,  was  reversed  by  the  Court  of  Exche- 
quer Chamber,  L.  R.  7  Q.  B.  196;  the 
reversal  being  affirmed  by  the  House  of 
Lords.  L.  E.  7  H.  L.  17.  Lord  Selborne, 
in  his  judgment  in  the  House  of  Lords,  in 
refutation  of  the  judgment  in  the  Court  of 
Queen's  Bench,  thus  conclusively  dealt 
with  the  case  ;  laying  down  clearly  the 
following  undoubtedly  sound  principles : 
"  There  are  some  observations  in  the  opin- 
ions of  the  learned  judges  in  the  Court  of 
Queen's  Bench  which  certainly  do  look  at 
fir.st  sight  as  if  some  of  those  learned  judges 
thought  that  there  might  be  a  valiii  con- 
tract of  suretyship,  or  a  secondary  liability 
upon  the  principle  of  a  guarantee  for  the 
debt  of  some  one  else,  to  which  the  law 
relative  to  that  description  of  contracts 
would  apply,  although  there  might  be  in 
truth  no  principal  debtor.  If  that  was 
the  view  of  the  learned  judges,  with  all 
respect  to  them,  I  must  confess  inysidf  un- 
able to  follow  it.  Tiiere  can  be  no  sure- 
tyship unless  there  be  a  principal  <lobtor, 
who,  of  course,  may  l)e  constituted  in  the 
course  of  the  transaction  by  matters  rx post 
facto,  and  need  not  be  .so  at  the  lime  ;  but 
until  there  is  a  principal  debtor  there  can 
be  no  suretyship.     Kor  can  a  man  guar- 


37 


578 


COMMENTARIES   ON   SALES. 


[book  IV. 


posed.     Now,  the  proof  of  the  consideration  was  quite  as  likely 
to  induce  perjury  as  the  proof  of  the  terms  of  the  contract.     It 


antee  anybody  else's  debt  unless  there  is  a 
debt  of  some  other  person  to  be  guaran- 
teed. The  tendency,  therefore,  of  any 
view  of  this  contract  which  would  place  it 
in  the  position  of  a  guarantee  for  a  future 
liability  to  be  undertaken  by  the  local 
board,  would  be  absolutely  to  defeat  the 
whole  purpose  of  the  communication, 
which  was  to  remove  a  difficulty  then 
pressing  upon  the  mind  of  the  contractor, 
as  to  whether  or  not  he  had  sufficient 
authority  from  any  one  to  go  on  with  the 
work  ;  and  the  answer  was  given  in  terms 
de  prcBsenti  for  the  express  purpose  of  in- 
ducing him  at  once  to  go  on." 

The  case  of  De  Wolf  v.  Eabaud,  1 
Peters,  476,  in  the  Supreme  Court  of  the 
United  States,  involves  some  very  nice 
questions  with  reference  to  the  point  we  have 
been  considering.  A  letter  was  written 
by  a  third  person,  George  De  Wolf,  to  the 
defendant,  James  De  Wolf  (jilaintiff  in  er- 
ror), as  follows:  "You  will  please  ship 
for  my  account,  on  board  such  vessel  as  I 
shall  direct,  500  boxes  white  Havana  sugar, 
consigned  to  R.  &  Co."  (the  plaintiffs; 
defendants  in  error).  This  was  signed  by 
George  De  Wolf,  and  assented  to  by  the 
defendant,  who  wrote  on  the  letter : 
"Agreed  to,  James  De  Wolf."  The 
plaintiffs,  R.  &  Co.,  in  consideration  for 
this  undertaking,  agreed  to  allow  George 
DeWolf  to  draw  on  them  for  100,000 
francs.  The  sngar  not  having  been 
shipped,  R.  &  Co.  brought  an  action 
against  James  DeWolf  for  damages  for  the 
non-shipment.  Three  questions,  among 
others  involved  in  the  case,  were,  whether 
R.  &  Co.  could  sue  on  such  a  contract ; 
whether  their  promise  was  to  answer  for 
the  debt,  etc.,  of  another  ;  and  whether 
the  consideration  sufficiently  appeared  in 
writing.  The  court  below  heW  for  the 
plaintiff  on  these  points  ;  and  their  hold- 
ing was  sustained  by  the  Supreme  Court 
on  error.  As  the  points  involved  in  the 
case  are  extremely  nice,  we  quote  quite 
fully  from  the  judgment  of  the  court,  de- 
livered by  Story,  J.,  who  says:  "The 
great  question  upon  the  merits  arises  upon 
that  part  of  the  charge  which  relates  to 
the  agreement  contained  in  the  letter  from 
George  De  Wolf  to  the  defendant,  and  the 
accompanying  assent  of  the  latter,  with 
reference  to  the  statute  of  frauds.  .  .  . 
Upon  this  part  of  the  case,  the  charge  was 
as  follows  :  '  It  is  said  that  this  letter,  un- 
der the  statute  of  frauds,  does  not  purport 
on  its  face  to  contain  any  binding  contract 
on  the  part  of  the  defendant,  and  that  the 
defects  cannot  be  supplied  by  parol  evi- 
dence.    This  objection,  I  think,   cannot 


be  sustained.  The  first  question  to  he. 
settled,  and  which  is  matter  of  fact  for 
your  determination,  is  whether  the  ar- 
rangement between  R.  &  Co.,  as  to  the 
authoritj'  to  draw  on  the  house  in  Mar- 
seilles, on  the  shipment  and  consignment 
of  five  hundred  boxes  of  sugar,  and  the 
undertaking  of  the  defendant,  were  made 
and  entered  into  at  one  and  the  same 
time,  so  as  to  form  one  entire  transaction.' 
The  judge  then  proceeded  to  sum  up  the 
evidence  on  this  point,  and  added  :  '  The 
consideration  for  this  undertaking  was  the 
authority  given  by  R.  &  Co.  to  George 
De  Wolf,  to  draw  on  the  plaintiffs  for  one 
hundred  thousand  francs.  This  consider- 
ation, it  is  true,  although  fully  proved,  is 
not  expressed  in  the  written  contract. 
And  one  question  is,  whether  it  can  be 
supplied  by  parol  evidence  ;  and  I  think 
it  may  if  the  undertaking  of  the  defend- 
ant was  entered  into  at  the  same  time  with 
that  between  R.  &  Co.  and  George  De- 
Wolf,  so  as  to  form  one  entire  transaction. 
The  evidence  does  not  in  any  manner  con- 
tradict the  written  agreement,  and  is  per- 
fectly consistent  with  it,  as,  between  the 
plaintiffs  and  George  DeWolf,  the  consid- 
eration might  be  clearly  supplied  by  parol 
proof ;  and  if  the  undertaking  of  the  de- 
fendant was  at  the  same  time,  it  required 
no  consideration  from  the  plaintiffs  to  him. 
The  consideration  to  George  De  Wolf  was 
sufficient  to  uphold  and  support  the  con- 
tract of  the  defendant.'  And  he  finally 
stated,  if  he  was  mistaken  in  this  view  of 
the  evidence,  '  and  the  jury  should  be  of 
opinion  that  the  contract  between  R.  & 
Co.  and  George  De  Wolf  was  completed 
and  unconnected  with  the  engagement  of 
the  defendant  before  he  undertook  to  make 
the  shipment  and  consignment,  then  the 
evidence  was  not  sufficient  to  maintain 
the  present  action.  It  will  then  be  a  col- 
lateral undertaking  made  subsequent  to 
the  principal  contract,  and  would  require 
some  other  consideration  than  that  which 
supported  the  principal  contract.'  The 
question,  then,  so  far  as  it  was  a  question 
of  fact,  whether  the  defendant  did  enter 
into  the  asserted  agreement  with  the  plain- 
tiffs, and  whether  it  was  a  part  of  the 
original  arrangementwith  George  De  Wolf, 
and  upon  the  original  consideration  mov- 
ing from  the  plaintiffs,  was  before  the 
jury,  and  they  have  found  in  the  affirma- 
tive. The  question  of  law  remains, 
whether  this  was  a  case  within  the  statute 
of  frauds,  so  as  to  prevent  parol  evidence 
from  being  admissible  to  charge  the  defend- 
ant. The  statute  of  frauds  of  New  York 
is  a  transcript  on  this  subject  of  the  stat- 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM   IN   WRITING. 


579 


is   reasonable  to  suppose  the  one  would  be  guarded  against  as 
much  as  the  other. 


ute  of  29th  of  Charles  II.  c.  3.  It 
declares  '  that  no  action  shall  he  brought 
to  charge  a  defendant  on  a  special 
promise  for  the  debt,  default,  or  mis- 
carriage of  another,  unless  the  agreement, 
or  some  memorandum  or  note  thereof, 
be  in  writing,  and  signed  by  the  party,  or 
by  any  one  by  him  authorized.'  The 
terras  '  collateral '  or  '  original '  promise, 
do  not  occur  in  the  statute,  and  have  been 
introduced  by  courts  of  law  to  explain  its 
objects  and  expound  its  true  interpretation. 
Whether  by  the  true  intent  of  the  statute 
it  was  to  extend  to  cases  where  the  collat- 
eral promise  (so  called)  was  a  part  of  the 
original  agreement,  and  founded  on  the 
same  consideration  moving  at  the  same 
time  between  the  parties  ;  or  whether  it 
was  confined  to  cases  where  there  was 
already  a  subsisting  debt  and  demand,  and 
the  promise  was  merely  founded  upon 
a  subsequent  and  distinct  undertaking, 
might,  if  the  point  were  entirely  new,  de- 
serve very  grave  deliberation.  But  it  has 
been  closed  within  very  narrow  limits  by 
the  course  of  the  authorities,  and  seems 
scarcely  open  for  general  examination,  at 
least  in  those  States  where  the  English 
authorities  have  been  fully  recognized  and 
adopted  in  practice.  If  A.  agree  to  ad- 
vance B.  a  sum  of  money,  for  which  B.  is 
to  be  answerable,  but  at  the  same  time  it 
is  expressed  upon  the  undertaking  that  C. 
will  do  some  act  for  the  security  of  A.,  and 
enter  into  an  agreement  with  A.  for  that 
purpose,  it  would  scarcely  seem  a  case  of 
a  mere  collateral  undertaking,  but  rather, 
if  one  might  use  the  phrase,  a  trilateral 
contract.  The  contract  of  B.  to  repay  the 
money  is  not  coincident  with,  nor  the  same 
contract  with  C.  to  do  the  act.  Each  is 
an  original  promise,  though  the  one  may 
be  deemed  subsidiary  or  secondaiy  to  the 
other.  The  original  consideration  flows 
from  A.,  not  solely  upon  the  promise  of  B. 
or  C,  but  upon  the  promise  of  both,  di- 
verso  intuitu,  and  each  becomes  liable  to 
A.,  not  upon  a  joint,  but  a  several  origi- 
nal undertaking.  Each  is  a  direct,  origi- 
nal promise,  founded  upon  the  same 
con.sideration.  The  credit  is  not  given 
solely  to  either,  but  to  both  ;  not  as  joint 
contractors  on  the  same  contract,  but  as 
separate  contractors  upon  coexisting  con- 
tracts forming  parts  of  the  same  general 
transaction.  Of  that  very  natun^  is  the 
contract  now  before  the  court ;  and  if  the 
intention  of  all  the  parlies  was  that  the 
letter  of  Nov.  15  should  be  delivered  to 
R.  &  Co.  as  evidence  of  the  original  agree- 
ment between  all  the  parties,  and  indeed 
as  part  execution  of  it,  to  bind  the  defend- 


ant not  merely  to  George  DeWolf,  but  to 
the  plaintift's  (and  so  it  has  been  estab- 
lished by  the  verdict),  then  it  is  not  very 
easy  to  distinguish  the  case  from  that 
which  was  put. 

"  But,  assuming  that  the  true  construc- 
tion of  the  statute  of  frauds  is,  as  the 
authorities  seem  to  support,  and  that  such 
a  promise  would  be  within  its  purview,  it 
remains  to  consider  whether  the  argu- 
ments at  the  bar  do  establish  any  error  in 
the  opinion  of  the  Circuit  Court.  In  the 
first  place,  there  is  no  repugnance  between 
the  terms  of  that  letter  and  the  parol 
evidence  introduced.  The  object  of  the 
latter  was  to  establish  the  fact  that  there 
was  a  sufficient  consideration  for  the  agree- 
ment, and  what  that  consideration  was, 
and,  also,  the  circumstances  under  which 
it  was  written,  as  explanatory  of  its 
nature  and  objects.  Its  terms  do  not 
necessarily  import  that  it  was  an  agree- 
ment exclusively  between  George  De  Wolf 
and  the  defendant.  If  the  paper  was  so 
drawn  up  and  executed  by  tlie  assent  of 
all  the  parties,  for  the  purpose  of  being 
delivered  to  R.  &  Co.  as  a  voucher  and 
evidence  to  them  of  an  absolute  agreement 
by  the  defendant  to  make  the  shipment, 
and  so  was,  in  fact,  understood  by  all  the 
parties  at  the  time,  there  is  nothing  in  its 
teims  inconsistent  with  such  an  inter- 
pretation. The  defendant  agrees  to  the 
shipment.  But  with  whom  ?  It  is  said 
with  George  DeWolf  alone  ;  but  that  does 
not  necessarily  follow,  because  it  is  not  an 
instrument  in  its  terms  inter  partes.  If 
the  parties  intended  that  it  sliouhl  express 
the  joint  assent  of  George  Ue  Wolf  and 
the  defendant  to  the  shipment,  and  it  was 
deliverable  to  R.  &.  Co.  accordingly,  8S 
evidence  of  their  joint  assent  that  it 
should  be  made  upon  the  terms  and  in  the 
manner  stated  in  it,  there  is  nothing 
which  contradicts  its  proper  purport ;  and 
it  is  then  precisely  what  th(^  jjarties  re- 
quire it  to  be.  It  was  for  the  jury  to  say 
whether  the  evidence  disclosed  that  as 
the  true  object  of  it,  and  to  give  it  effect 
accordingly,  as  proof  of  an  agreement  in 
support  of  the  declaration.  Th<'  case  of 
Sargent  v.  Morris,  13  B.  k  Aid.  277, 
furnishes  no  uninstructive  analogy  for  its 
admission.  In  the  next  j)]aci',  was  the 
])arol  evidence  inaibnissiiijc^  to  sujijily 
the  defect  of  the  written  instrument  ns  to 
the  consideration  and  res  rfrslir  between 
the  parties  ?  The  case  of  Wain  v.  Wnrl- 
ters,  5  P]ast,  10,  was  tln^  first  case  wliicli 
settled  the  jioint,  that  it  was  necessary,  to 
escape  from  the  statute  of  frauds,  that  the 
agreement  should  contain   the  considera- 


580 


COMMENTARIES   ON   SALES. 


[book  it. 


4.  If  the  design  was  to  prevent  the  enforcing  of  a  legal  con- 
tract to  pay  another's  debt,  i.e.,  a  contract  with  sufficient  con- 
sideration, and  if  the  statute  requires  that  contract  to  be  in 
writing,  it  means  that  the  whole  contract  should  be  in  writing, 
and  not  such  part  only  as  is  in  its  very  nature  illegal  and  void 
without  the  rest.  The  consideration  of  the  promise,  as  well  as 
the  promise  itself,  ought,  therefore,  to  be  in  writing. 

5.  The  terms  of  the  statute  support  this  conclusion  :  "  Unless 
the  agreement,  or  some  note  or  memorandum  thereof,  be  in  writ- 
ing." Now,  what  is  an  agreement  ?  A  consideration  is  always 
contained  in  the  legal  idea  of  an  agreement,  and  writers  as  well 
as  courts  always  so  consider  \t} 


tion  for  the  promise  as  well  as  the 
promise  itself.  If  it  contained  it,  it  has 
since  been  determined  that  it  is  wholly 
immaterial  whether  the  consideration  be 
stated  in  express  terms  or  by  necessary 
implication.  That  case  has,  from  its 
origin,  encountered  many  difficulties,  and 
been  matter  of  serious  observation,  both 
at  the  bar  and  on  the  bench,  in  England 
and  America.  After  many  doubts,  it 
seems  at  last  in  England,  by  the  recent 
decisions  of  Saunders  v.  Wakefield,  4  B. 
&  Aid.  595,  and  Jenkins  v.  Rt-ynolds,  3 
Brod.  &  Bing.  14,  to  have  settled  down 
into  an  api)roved  authority.  It  has  not, 
however,  received  a  uniform  recognition 
in  Ameiica,  although  in  several  of  the 
States,  and  particularly  in  New  York,  it 
has,  to  a  limited  extent,  been  adopted  into 
its  jurisprudence  as  a  sound  construction 
of  the  statute.  On  the  other  hand,  there  is 
a  very  elaborate  opinion  of  the  Supreme 
Court  of  Massachusetts,  in  Packard  v. 
Richardson,  17  Mass.  122,  wliere  its  au- 
thority was  directly  overruled.  What 
might  be  our  own  view  of  the  question,  un- 
aff"ected  by  any  local  decision,  it  is  unneces- 
sary to  suggest  ;  because  the  decisions  in 
New  York  upon  the  construction  of  its  own 
statute,  and  the  extent  of  the  rules  de- 
duced from  it,  furnisli,  in  the  present  case, 
a  clear  guide  for  this  court.  In  the  case 
of  Leonard  v.  Vredenburgh,  8  Johns.  29, 
Mr.  Chief  Justice  Kent,  in  delivering  the 
opinion  of  the  court,  adverting  to  tlie  fact 
that  that  case  was  one  of  a  guarantee  or 
promise  collateral  to  the  principal  con- 
tract, but  made  at  the  same  time,  and 
becoming  an  essential  ground  of  the 
credit  given  to  the  principal  or  direct 
debtor,  added,  '  and  if  there  was  no  con- 
sideration other  than  the  original  trans- 
action, the  plaintiH"  ought  to  have  been 
permitted  to  show  that  fact,  if  necessary, 
by  parol  proof ;  and  the  decision  of  Wain 
V.  Warlters  did  not  stand  in  the  way.' 
One    of   the   points    in    that    ease  was, 


whether  the  parol  proof  of  the  considera- 
tion was  not  improperly  rejected  at  the 
trial  ;  and  the  decision  of  the  court  was 
that  it  ought  to  have  been  admitted.  It 
is  not,  therefore,  as  was  suggested  at  the 
argument,  a  mere  obiter  dictum,  uncalled 
for  by  the  case.  It  was  one,  though  not 
the  only  one,  of  the  points  in  judgment 
before  the  court.  The  same  doctrine  has 
been  subsequently  recognized  by  the  same 
court  in  Bailey  v.  Freeman,  11  Johns. 
221,  and  in  Nelson  v.  Dubois,  13  Johns. 
175.  It  does  not  seem  necessary  to  pursue 
this  subject  further,  because  liere  is  a 
clear  authority  justifying  the  admission  of 
the  parol  evidence  upon  the  principle  of 
the  local  jurisprudence.  It  seems  to  us 
a  reasonable  doctrine,  founded  in  good 
sense  and. convenience,  and  tending  rather 
to  suppress  than  encourage  fraud.  But, 
whether  so  or  not,  it  sustains  the  opinion 
of  the  Circuit  Court  in  a  manner  entirely 
free  from  exception." 

1  Pillans  V.  Mierop,  3  Burr.  1670  ;  Plow. 
308  h  ;  Dyer,  336  6  ;  2  Bl.  Com.  446. 
Southard,  J.,  after  stating  the  above 
formal  propositions,  added:  "If,  then, 
this  agreement  had  stated  the  forbearance 
or  delay  to  prosecute,  which  is  stated  in 
the  demand,  it  would  have  set  forth  a 
valid  consideration,  and  been  sufficient 
under  the  statute  of  frauds.  As  it  has 
not  set  forth  that,  or  any  other  considera- 
tion, I  think  it  is  insufficient."  The 
above  propositions,  stated  in  the  text,  are 
in  accord  witli  the  mass  of  authority  of 
the  courts  of  this  country,  manifested  by 
either,  in  effect,  a  direct  affirmation  of  the 
doctrines  which  these  propositions  clearly, 
and,  without  a  particle  of  doubt,  we  think, 
correctly  propound  ;  or  else,  as  in  Massa- 
chusetts and  Maine,  while  affecting  to 
hold  that  the  consideration  need  not  be  ex- 
pressed in  the  writing,  really  holding,  with 
respect  to  contracts  coming  within  the 
purview  of  the  statute,  that  the  whole 
contract,  or  "all  its  essential  elements," 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM   IN   WRITING. 


581 


The  conclusion,  we  think,  resulting  from  the  very  full  examina- 
tion we  have  made  of  the  subject,  is  that  the  law  is  perfectlj 


must  appear  in  the  writing  ;  or  else,  they 
confouud  the  mutuality  with  the  considera- 
tion, or  incorrectly  fancy  that  Egerton  v. 
Mathews,  6  East,  307,  is  decided  contra  to 
Wain  V.  Warlters,  5  East,  10,  or  estab- 
lishes any  different  doctrine  in  respect  to 
the  necessity  of  the  consideration  appear- 
ing in  the  writing,  or  by  fair  inference 
from  it,  under  the  17th  section,  than  is 
established  by  such  cases  as  Wain  v. 
Warlters,  5  East,  10,  and  Stadt  v.  Lill,  9 
East,  348,  with  respect  to  cases  under  the 
4th  section  of  the  English  statute.  See 
Stephens  v.  Winn,  2  N.  &  McC.  (S. 
C.)  372  n.  ;  Sleeat  v.  Tavel,  3  McCord, 
158  ;  Miller  v.  Irvine,  1  Dev.  &  B.  103, 
104,  106  ;  Rice  v.  Carter,  11  Ired.  300  ; 
Green  v.  Thornton,  4  Jones  (Law),  330  ; 
Laing  v.  Lee,  Spenc.  (N.J.)  337  ;  Key- 
nolds  V.  Carpenter,  3  Chand.  (Wis.)  31  ; 
Taylor  v.  Pratt,  3  Wis.  594,  609  ;  Wyer- 
nan  v.  Goodrich,  26  Wis.  21  ;  Doty  v. 
Wilder,  15  111.  407  ;  McConnell  v.  Brill- 
hart,  17  111.  354,  361,  and  the  numerous 
cases  there  cited  by  the  court,  to  the  effect 
that  "the  writings,  notes,  or  memoranda 
must  contain  on  their  face,  or  by  refer- 
ence to  others,  that  is  traceable,  the  names 
of  the  parties,  vendor  and  vendee,  a  suffi- 
ciently clear  and  explicit  description  of 
the  thing,  interest,  or  property,  as  will  be 
capable  of  identification  and  separation 
from  other  of  like  kind,  together  with  the 
terms,  conditions,  and  price  to  be  paid, 
or  other  consideration  to  be  given."  Pat- 
mor  V.  Haggard,  78  111.  607,  611  ;  Gregory 
r.  Logan,  7  Blackf.  (Ind.)  112:  Noakes 
V.  Morey,  30  Ind.  103,  110;  Ridgway  u, 
Ingram,  50  Ind.  145,  146,  148  ;  Norris 
V.  Blair,  39  Ind.  90,  94,  and  cases  there 
cited  ;  Neelson  v.  San  borne,  2  N.  H.  413  ; 
Underwood  v.  Campbell,  14  N.  H.  393  ; 
Henderson  v.  Johnson,  6  Ga.  390 ;  Har- 
groves  V.  Cooke,  15  Ga.  321 ;  Nichols  v. 
Allen,  23  Minn.  542 ;  Walker  v.  Mc- 
Donald, 5  Minn.  455  ;  Hutton  v.  Padgett, 
26  Md.  228  ;  Nabb  v.  Koontz,  17  Md. 
283  ;  Brooks  v.  Dent,  1  Md.  Ch.  523  ; 
Edelen  v.  Gough,  5  Gill,  103  ;  Sloan  v. 
Wilson,  4  Har.  &  J.  322,  329  ;  Wyman 
V.  Gray,  7  Har.  &  J.  409,  416  ;  Elliott  v. 
Giese,  7  Har.  k  J.  457  ;  Weldin  v.  Porter, 
4  Houst.  (Del.)  236  ;  Blair  v.  Snodgrass, 
1  Sneed  (Tenn. ),  1,  25  ;  Parker's  Heirs  w. 
Bodley,  4  Bibb,  109;  Ellis  v.  Deadman's 
Heirs,  4  Bibb,  466  ;  Soles  v.  Hickman, 
20  Pa.  St.  180;  McFarrow's  Appeal,  11  Pa. 
St.  503  ;  Burke  v.  Haley,  2  Gilm.  614. 

It  is  said  in  Patchin  v.  Swift,  21  Vt. 
292,  297,  that  it  is  the  settled  law  in  Ver- 
mont that  it  is  not  necessary  under  their 
statute  of  frauds  —  which,  in  effect,  is  a 


transcript  of  29  Car.  2,  c.  3— that  the 
consideration,  which,  they  say  is  neces- 
sary to  support  any  contract,  "should 
appear  upon  the  face  of  tJie  written  contract 
itself"  What  kind  of  a  "written  con- 
tract "  it  would  be,  which,  on  its  face,  ex- 
presses no  consideration  (as  they  were 
dealing  there  with  executory  contracts), 
they  did  not  seem  to  stop  to  consider. 
It  is  clear  that  what  they  designate  a 
"  contract  "  would  be  simply  nudum  pac- 
tum. And  the  very  language  they  employ 
shows,  even  more  clearly  than  the  lan- 
guage of  the  statute  itself,  the  necessity 
of  the  whole  contract,  bargain,  or  agree- 
ment, or  a  note  or  memorandum  thereof 
(including,  of  course,  one  of  "  the  essential 
parts"  of  it,  without  which  there  is  no 
binding  executory  contract,  the  considera- 
tion), being  set  out  in  the  writing,  or  ap- 
pearing by  reasonable  inference  therefrom. 
And  there  is  more  than  a  question  as  to 
whether  "the  law"  ("the  very  reason  of 
the  thing  ;  for  that  which  is  not  reason  is 
not  law ")  on  the  question  is  as  well 
settled  in  Vermont,  that,  under  the  stat- 
ute, the  consideration  of  the  contract, 
bargain,  or  agreement  need  not  ajipear  by 
the  writing,  as  the  court  in  Patchin  v. 
Swift,  21  Vt.  292,  297,  assumed  it  to  have 
been.  An  examination  of  the  previous 
authorities  in  Vermont  will  show  that,  as 
in  Massachusetts  and  Maine,  they  affected 
to  hold  that  the  consideration  need  not 
appear  in  the  writing,  or  by  necessary  in- 
ference from  it,  —  claiming  to  di-ssent 
from  the  well-established  doctrine  of 
Wain  V.  Warlters,  5  East,  10,  and  the 
other  well-decided  cases  following  it,  — 
yet,  with  reference,  at  least,  to  some  of 
the  contracts,  bargains,  agreements,  under 
the  statute,  they  really  held  tliat  "all  tlu 
essential  elements"  of  such  bargains,  con- 
tracts, agreements,  including,  of  course, 
the  whole  of  each  side  thereof,  must  ap- 
pear in  the  writing.  True,  in  Smith  v. 
Ide,  3  Vt.  290,  they  did  hold  —  Royce,  J., 
delivering  the  judgment  —  that  tiie  con- 
sideration for  the  si)ecial  promise  to  jiay 
the  debt  of  another  need  not  apjiear  "in 
the  note  or  memorandum  in  wiiliug  of 
the  agreement."  But  it  is  obvious  that 
(seep.  300)  they  confound  mutunlity  witli 
consideration,  the  former  of  wlii.  li,  as  we 
have  shown,  supra,  Mr.  Kuberts,  in  hiH 
work  on  "Frauds,"  correctly  contended, 
could  not  logically  be  shown  by  tlie  writ- 
ing witliout  the  writing  Ix-ing  signed  by 
both  parties  to  it,  which  the  statute  does 
not  require.  The  considi-ration,  as  we 
have  fully  shown  in  tlie  first  portion  of 
this  Parti  is  neither  the  mutuality,  with 


582 


COMMENTARIES   ON   SALES. 


[book   IV. 


clear  and  well  settled,  on  principle  and  the  overwhelming  weight 
of    authority,  that,   with   reference   to  the   contracts,  bargains. 


which  it  is  so  often  confounded,  nor  what 
is  sometimes  called  "the  motives  and  in- 
ducements," or  "the  motives  and  con- 
siderations." It  is,  in  a  word,  that  which 
the  one  party  to  the  contract  gives,  or  is 
to  give,  for  that  which  he  receives  or  is  to 
receive. 

It  was  contended  for  the  defendant,  in 
Thomas  v.  Thomas,  2  Q.  B.  851,  relying  on 
the  detinition  by  Plowden,  in  comment- 
ing on  Sharington  v.  Straton,  Plow.  309, 
that,  by  the  civil  law  nudum  pactum  is 
defined  thus:  "Nudum  pactum  est  ubi 
nulla  siibe.it  causa  proiter  conve/itionem  ; 
sed  ubi  subest  causa.  Jit  obligatio,  et  parit 
actionem ; "  that  what  is  meant  by  the 
consideration  for  a  promise  is  the  motive, 
cause,  or  inducement  for  making  it.  But 
the  court  expressly  held  the  reverse.  Lord 
Denman,  C.  J.,  saying:  "There  is  noth- 
ing in  this  case  (i.  e.  for  the  defendant) 
but  a  great  deal  of  ingenuity,  and  a  little 
blindness  to  the  actual  terms  of  the  in- 
strument itself.  There  is  nothing  what- 
ever to  show  that  the  ground  rent  was 
not  payal)le  to  a  superior  landlord  ;  and 
the  stipulation  for  the  payment  of  it  is 
not  a  mere  proviso,  but  an  express  agree- 
ment. ...  This  is  in  terms  an  express 
agreement,  and  shows  a  sufficient  legal 
consideration,  quite  independent  of  the 
moral  feeling  which  disposed  the  execu- 
tors to  enter  into  such  a  contract.  Mr. 
Williams's  (defendant's  counsel)  definition 
of  consideration  is  too  large ;  the  word 
causa  in  the  passage  referre<l  to  means  one 
which  confers  what  tlie  law  considers  a  ben- 
efit on  the  party."  And  Patteson,  J. :  "It 
would  be  giving  to  causa  too  large  a  con- 
struction if  we  were  to  adopt  the  view 
urged  for  the  defendant ;  it  would  be  con- 
founding consideration  with  motive.  Mo- 
tive is  not  tlie  same  thing  with  considera- 
tion. Consideration  means  something  which 
is  of  some  value  in  the  eye  of  the  laio,  mov- 
ing from  the  plainfiff.  It  may  be  some 
benefit  to  the  jjlaintiff,  or  some  detriment 
to  the  defendant  ;  but,  at  all  events,  it 
must  be  moving  from  the  plaintiff."  And 
see  a  commentary  on  the  Code  Civil,  in 
"  Codes  Fran(;ais  Expliquis,"  by  Rogron, 
Paris,  1836,  in  his  note  on  "Sans  cause." 

And,  notwithstanding  the  holding  of 
the  Vermont  Court  in  Smith  v.  Ide,  3  Vt. 
290,  as  stated  (Royce,  J.,  delivering  the 
judgment  of  the  court),  it  was  held,  in 
Ide  &  Smith  v.  Stanton,  15  Vt.  685,  691 
(Royce,  J.,  again  delivering  the  unanimous 
judgment  of  the  Vermont  Supreme  Court), 
that,  under  the  Vermont  statute,  tlie 
whole  of  the  bargain,  including  the  price 
as  "  an  essential  ingredient  in  the  contract 


of  sale"  must  appear  in  the  written  note 
or  memorandum  of  the  bargain,  to  satisfy 
the  statute;  and  that  it  "must  be  real 
and  fixed,  or  be  susceptible  of  being  ascer- 
tained in  the  mode  prescribed  by  the  con- 
tract, without  further  negotiation  between 
the  parties  ; "  citing  2  Kent's  Com.  477. 
Also  adding:  "This  accords  also  with 
the  rules  of  the  civil  law,  that  the  price 
ought  to  be  established,  for  there  can  be 
710  bargain  without  a  price ; "  that  is, 
more  properly,  as  Noy  has  it  ( Xoy's  Max- 
ims, by  Blyihewood,  a.  d.  1821),  a  quid 
jjTo  quo,  for  {Ibid.)  "It  is  a  general  learn- 
ing that  there  must  be  in  every  contract 
quid  pro  quo,  viz.,  some  valuable  consid- 
eration between  the  parties  to  be  paid  or 
performed,  either  presently  or  at  a  day  to 
come  ;  for  ex  nudo  pacto  non  oritur  actio." 
The  following,  from  the  judgment  of  the 
Vermont  Court,  shows,  not  only  how  they 
were  confounding  the  consideration  with 
mutuality,  but  that  they  were,  in  effect, 
following  the  well-decided  case  of  Egerton 
V.  Mathews,  6  East,  307,  which  in  eff"ect 
holds  that  if,  under  the  statute,  the  note 
or  memorandum  in  writing  contain  all 
the  essential  elements  of  the  contract, 
bargain,  or  agreement,  the  writing  is 
sufficient  to  satisfy  the  statute,  although 
signed  by  only  the  party  to  be  charged. 
"  The  defendant's  letters,"  say  the  court, 
in  their  judgment  in  Ide  &  Smith  )■.  Stan- 
ton, 15  Vt.  at  p.  691,  "  which  are  relied 
on  as  furnishing  the  requisite  written  evi- 
dence in  this  case,  disclose  the  names  of 
the  parties,  and  the  subject-matter  of  the 
purchiise,  but  are  silent  as  to  the  price 
agreed  to  be  paid.  [Which  was,  of 
course,  the  consideration  for  the  goods 
purchased.]  This,  it  is  insisted,  was  but 
the  consideration  of  the  bargain,  which, 
according  to  Egerton  v.  Mathews,  6  East, 
306  [?],  veed  not  appear  in  the  writing  [!]. 
But  in  that  case  the  price  was  distinctly 
stated  in  the  writing,  and  the  question 
was  whether,  as  the  contract  could  not 
have  been  enforced  against  tl^e  plaintiff^ 
for  want  of  his  signature  to  the  memo- 
randum, the  defendant  was  bound  by  it, 
without  .some  consideration,  apparent  upon 
the  writing,  beyond  his  own  admitted  obli- 
gation. [What  nonsense!  His  "own 
admitted  obligation  "  is  no  consideration 
for  that  obligation  itself.  The  consid- 
eration there  was  the  cotton  the  defend- 
ants were  to  receive  for  the  price  —  the 
19rf.  per  lb.  —  which  they  were  to  pay.] 
It  was  decided  that  no  such  additional 
consideration  [then  a  consideration  did 
appear  !]  was  required  to  appear  in  writ- 
ing.    And  this,  it  is  believed,  is  the  ex- 


PART   VIII.]        THE   NOTE   OR   MEMORANDUM   IN   WRITING. 


683 


agreements,  sales,  under  the  4th  and  17th  sections  of  29  Car.  2, 
c.  3,  and  under  other  statutes  in  effect  the  same ;  such  contracts, 
bargains,  agreements,  sales,  or  some  note  or  memorandum  thereof, 
must  appear  in  the  writing,  or  by  reasonable  inference  therefrom ; 
and  that,  under  such  statutes,  there  is  no  note  or  memorandum 
in  writing  of  such  sales,  agreements,  bargains,  contracts,  where 
any  of  the  essential  elements  thereof  are  wanting.  And  as,  with- 
out a  consideration,  there  is  no  binding  executory  contract,  where 
the  consideration  is  not  expressed  in  the  writing  or  does  not  ap- 
pear by  reasonable  inference  therefrom,  all  the  essential  elements 
of  a  bargain  or  agreement  are  not  stated,  and  the  statute  is  not 
satisfied  ;  this  principle  of  law  being  clearly  as  applicable  to  this 
country  as  to  England. 


tent  of  all  the  decisions  which  have  pro- 
fessed to  follow  out  the  doctrine  of  Egerton 
V.  Mathews."  The  decisions  which  pro- 
fess "to  follow  out  the  doctrine  of  Eger- 
ton V.  Mathews,"  6  East,  307,  are  all  to 
the  effect,  if  they  do  follow  out  that  doc- 
trine, as  we  have  fully  shown  in  this 
Part,  that  the  whole  contract,  bargain, 
or  agreement,  in  all  its  essential  parts, 
outside  of  the  mutuality,  which  can  be 
shown  dehors  the  writing,  must,  to  satisfy 
the  statute,  be  expressed  in  the  writing, 
or  appear  by  reasonable  inference  there- 
from; and  that  neither  in  England  or 
America  is  there  one  well-decided  case 
which  holds  the  contrary  doctrine,  not- 
withstanding those  cases  in  a  few  of  the 
States  in  this  country  which  purport  to 
have  been  otherwise  decided. 

An  additional  feature  in  the  decision  in 
Ide  &  Smith  v.  Stanton,  15  Vt.  685,  692, 
is  that  several  English  cases  were  cited  by 
the  Vermont  Court  to  sustain  their  con- 
struction of  the  statute.  Of  these,  Brom- 
ley V.  Jeffries,  2  Vern.  415,  did  not  arise 
under  the  statute,  and  merely  holds  that 
a  covenant,  without  mutuality,  would  not 
be  enforced.  But,  in  Clark  v.  Wright,  1 
Atk.  12  (A.  D.  1737),  Wain  v.  Warlters, 
5  East,  10,  not  being  decided  until  A.  D. 
1804,  it  w;is  held  that  an  agreement  would 
not  be  enforced  on  a  letter  unless  it  con- 
tained the  full  terms  of  the  agreement.  So, 
in  Blagden  v.  Bradbear,  12  Ves.  466,  471, 
it  was  held  (and  this  was  under  the  4th 
section,  in  which  the  Vermont  Court,  in 
Smith  V.  Ide,  290,  —  and  see  Ide  v.  Stan- 


ton, 15  Vt.  at  p.  691,  — treated  the  word 
"agreement"  as  less  formal  than  "bar- 
gain" under  the  17th)  that  the  writing 
"must  contain  in  itself,  or  by  reference  to 
something  else  must  show,  ivhat  the  agree- 
ment  is ; "  and,  therefore,  was  insufficient, 
because  it  did  not  show  the  consideration, 
which,  in  that  case,  was  the  price  of  the 
land  sold.  And  again,  in  the  remaining 
case  cited,  Elmore  v.  Kingscote,  5  B.  &  C. 
583,  which  was  under  tlie  17th  section, 
the  court  held  that  "  There  must  be  a  note 
or  memorandum  in  writing  of  the  bar- 
gain;" and,  therefore,  where  anything, 
such  as  the  consideration,  —  in  this  case 
the  200  guineas  to  be  paid  for  the  horse 
sold,  —  which  "constitutes  a  material  part 
of  the  bargain,"  is  omitted  from  the  writ- 
ing, the  statute,  requiring  a  note  or  mem- 
orandum in  writing  of  the  baigain,  is  not 
satisfied.  The  more  thoroughly  and  ex- 
haustively the  subject  is  examined,  the 
more  clearly  and  distinctly  it  is  estab- 
lished, we  think,  that,  whether  under  the 
4th  or  17th  section  of  the  statute,  there 
must  be  a  note  or  memorandum  in  writing 
of  the  whole  contract,  bargain,  or  agree- 
ment ;  and,  therefore,  where  the  writing 
fails  to  show  any  of  the  essential  elements 
of  the  contract,  bargain,  or  agreement,  — 
a  fortiori,  the  consideration,  without  which 
the  undertaking  is  simply  nudum  pactum, 
—  the  statute  is  not  satisfied.  Such  a 
conclusion  seems  so  palpable,  that  it  is 
"passing  strange"  that  there  sliould  be 
any  conflict  of  opinion  on  the  subject. 


584  COMMENTARIES  ON   SALES.  [BOOK   IV. 


BOOK    lY. 

PART  IX. 

THE    ESSENTIAL    REQUISITES    OF    THE    MEMORANDUM. 

By  section  seventeenth  of  the  statute,  the  contract  shall  not  be 
allowed  to  be  good,  unless  some  note  or  memorandum  in  writing  of 
the  said  bargain  be  made  and  signed  by  the  parties  to  be  charged 
by  such  contract,  or  their  agents  thereunto  lawfully  authorized. 
We  have  already  seen,  that,  to  comply  with  the  requirements  of 
this  section,  the  note  or  memorandum  in  writing  must  show  all 
the  essential  elements  of  the  contract,  outside  of  the  mutuality, 
which  latter  can  be  shown  by  evidence  aliunde.  These  essential 
elements  are,  the  parties  to  the  contract ;  the  subject-matter  of  the 
contract ;  the  consideration,  which,  as  the  other  side  of  the  con- 
tract, bargain,  or  agreement,  covers  all  that  goes  to  make  up  the 
terms  and  conditions  of  the  sale,  including  the  price,  when  that 
has  been  made  an  express  element  of  the  contract.  And  the 
memorandum  must  be  signed  by  the  parties  to  be  charged,  or 
their  agents  lawfully  authorized. 

Under  the  fifth  section  of  29  Car.  2,  c.  3,  it  is  enacted  that 
devises  of  lands  or  tenements  must  be  in  writing,  signed  by  the 
devisee,  etc.  It  was  very  early  decided,  under  this  section,  where 
the  testator  wrote  his  will  with  his  own  hand  :  "  I,  John  Stanley, 
make  this  my  last  will  and  testament,"  without  any  further  signa- 
ture by  him,-  that  this  was  a  sufficient  signing  to  satisfy  the  stat- 
ute ;  "  for  being  written  by  himself,  and  his  name  in  the  will,  it  is 
a  sufficient  signing  within  the  statute,  which  does  not  appoint 
where  the  will  shall  be  signed,  in  the  top,  bottom,  or  margin,  and 
therefore  a  signing  in  any  part  is  sufficient."  ^     As  the  language 

*  Lemayne  v.  Stanley,   3  Lev.   1:  33  "  But  if  it  is  suflScient  in  a  will  devising 

Car.  2,  A.  D.  1680  ;  Ellis  v.  Smith,  1  Ves.  lands,  it  is  very  difficult  to  say  upon  what 

Jr.     1],     14.      In    Coles    v.    Trecothick,  ground  such  a  signature  should  not  con- 

9  Ves.  234,  249,  Lord  Eldon,  in  referring  stitute  an  effectual  agreement  as  to  lands 

to  the  sufficiency  of  the  language  written  or  goods  ;  construing  the  very  same  words 

by  a  testator  himself  of  "  I,  A.    B.,  do  in  one  simultaneous   act   comprising  the 

make   this  my  will,"   etc.,    without   any  whole  of  the  terms."     (As  regards  wills  in 

further  signing  to  satisfy  the  statute,  says  :  England,  by  1  V^ic.  c.  26,  §  39,  the  will  has 


PART   IX.]      THE   ESSENTIAL   REQUISITES   OF   THE   MEMORANDUM.      585 

in  both  the  fourth  and  seventeenth  sections  is  similar  to  that  in 
the  fifth,  the  decision  is  equally  applicable  to  the  three  sections.^ 

In  the  old  and  leading  case  of  Stokes  v.  Moore  (a.  d.  1786)2 
where  it  was  held  that  the  mere  circumstance  of  the  name  of  the 
party  being  written  by  himself  in  the  body  of  a  note  or  memor- 
andum will  not  constitute  a  signature  within  the  meaning  of  the 
Statute  of  Frauds,  Baron  Eyre  thus  laid  down  the  law :  "  The 
signature  is  to  have  the  effect  of  giving  authority  to  the  whole 
instrument,  and  if  the  name  is  inserted  so  as  to  have  that  effect,  I 
do  not  think  it  signifies  much,  in  what  part  of  the  instrument  it  is 
to  be  found.  It  is  perhaps  difficult,  except  in  the  case  of  a  letter 
with  a  postscript,  to  find  an  instance  where  a  name  inserted  in  the 
middle  of  a  writing  can  well  have  that  effect ;  and  then  the  name 
being  generally  found  in  a  particular  place  by  the  common  usage 


to  be  signed  at  the  foot  or  end  thereof.) 
See  Morison  v.  Turnour,  18  Ves.  175,  183, 
per  Lord  Eldon,  where  the  language  in  the 
memorandum  was  in  the  third  person  : 
"  Mr.  Turnour  has  again  seen  Esher  Hill 
Cottage,  etc.  .  .  .  This  induces  him  to 
make  the  present  offer."  This,  under  the 
authorities  we  cite,  would  clearly  be  a 
sufficient  signing  to  satisfy  the  statute. 

1  In  Lemayne  v.  Stanley,  3  Lev.  1, 
there  is  an  obiter  dictum  that  "the  put- 
ting of  his  seal  had  of  itself  been  a  suffi- 
cient signing  within  the  statute  ;  for  sig- 
num.  is  no  more  than  a  mark,  and  sealing 
is  a  sufficient  mark;"  but  Levinz,  J., 
doubted  of  this  upon  the  case  in  1  Rolle 
Ab.  245  ;  Arbitrement,  B.,  pi.,  25.  In 
Smith  V.  Evans,  1  Wils.  313  (a.  d.  1751), 
the  dictum  in  Lemayne  v.  Stanley,  3  Lev. 

I,  was  disapproved,  the  court  holding  that 
sealing  is  not  a  sufficient  signing  within 
the  statute  of  frauds.  In  Grayson  v.  At- 
kinson, 2  Ves.  Sen.  454,  at  p.  459,  Lord 
Hardwicke  says  :  "  The  statute  requiring 
the  will  to  be  signed  undoubtedly  meant 
some  evidence  to  arise  from  the  hand- 
writing ;  then  how  can  it  be  said  that 
putting  a  seal  to  it  would  be  a  sufficient 
signing  ?  For  any  one  may  put  a  seal. 
No  particular  evidence  arises  from  that 
seal  ;  common  seals  are  alike,  and  one 
man's  may  be  like  another's.  No  cer- 
tainty or  guard,  therefore,  arises  from 
thence."     In   Ellis   v.  Smith,  1  Ves.  Jr. 

II,  13,  Willes,  C.  J.,  said:  "Nor  do  I 
think  sealing  is  to  be  considered  as  sign- 
ing ;  and  I  declare  so  now  because,  if  that 
question  ever  comes  before  me  I  shall  not 
think  myself  precluded  from  weighing  it 
thoroughly  and  decreeing  that  it  is  not 
signing,  notwithstanding  the  obiter  dicta 
which  in  many  cases  were  nunquam  dicta, 
but  barely  the  words  of  the  reporters  ;  for 


upon  examination,  I  have  found  many  of 
the  sayings  ascribed  to  that  great  man. 
Lord  Chief-Justice  Holt,  were  never  said 
by  him."  It  was  held  by  Raymond,  C.  J., 
in  Warneford  v.  Warneford,  2  Str.  764, 
on  the  authority  of  the  dicta  in  Lemayne 
V.  Stanley,  3  Lev.  1,  that  sealing  a  will 
was  a  sufficient  signing  within  the  statute 
of  frauds  ;  but  the  law  of  the  case  was  very 
strongly  doubted  by  the  old  writers.  See 
Theo.  Evid.  68  ;  Bull.  Ni.  Pri.  263.  And 
it  has  long  since  been  held  that  that  case 
is  not  law.  In  Wright  v.  Wakeford,  1  Ves. 
454,  458,  Lord  Eldon  said  :  "It  is  true, 
at  one  time  it  was  decided  that  sealing 
was  signing  ;  and  when  it  was  urged  that 
the  legislature  meant  more  than  sealing, 
first,  from  the  circumstance  that  sealing  is 
not  mentioned  as  to  wills  ;  secondly,  as 
the  legislature  must  have  proposed  some 
evidence  from  the  handwriting  of  the 
party,  the  objection  was  that  a  person 
may  sign  by  liis  mark  ;  an  act  affording 
no.  material  testimony;  and  upon  such 
reasoning  it  was  decided  originally  that 
sealing  was  signing  ;  but  ujion  a  review  of 
that,  the  contrary  has  been  held  for  a  long 
time,  and  so  far  is  sealing  from  lieing 
equivalent  to  signing,  that  it  is  determined 
that  sealing  is  not  necessary  ;  and  that 
sealing  without  signing  is  not  a  sullicient 
execution  of  a  will  ;  the  converse  liolding 
as  to  a  deed,  which  cannot  be  witiiout 
.sealing  and  delivery.  If  signed,  it  may 
be  a  writing  ;  but  if  delivered,  it  may  be 
a  good  deed,  whether  signed  or  not ;  and 
if  it  is  to  be  executed  under  a  power  with 
signature  and  sealing,  both  are  re(|uircd." 
And  see  Baker  v.  Dening,  8  A.  &  E.  94, 
97,  per  Lord  Denman,  C.  J.  :  "Sealing  is 
one  thing ;  signing,  another."  Siiepp. 
Touchst.  60,  c.  4,  No.  5. 
2  1  Cox,  219. 


586 


COMMENTARIES   ON   SALES. 


[book  IV. 


of  mankind,  it  may  very  probably  have  the  effect  of  a  legal  signa- 
ture, and  extend  to  the  whole."  ^ 

The  same  principle  was  laid  down  in  Ogilvie  v.  Foljambe^  by  Sir 
Wm.  Grant,  viz.,  that,  provided  the  name  be  inserted  in  such 
manner  as  to  have  the  effect  of  authenticating  the  instrument,  the 
provision  of  the  act  as  to  the  signature  is  complied  with,  and  it 
does  not  much  signify  in  what  part  of  the  instrument  the  name  is 
to  be  found.^ 


1  The  Lord-Chief  Baron,  in  Moore  v. 
Stokes,  1  Cox,  219,  222,  said  :  "  The  ques- 
tion in  this  case  is  whether  the  written 
note  stated  in  the  pleadings  is  such  an 
agreement  as  is  within  the  meaning 
of  the  statute  of  frauds.  These  are  in- 
structions to  the  attorney  for  the  prepara- 
tion of  the  lease.  This  is  no  formal  sig- 
nature of  the  defendant's  name,  but  one 
term  of  the  instructions  is  that  the  rent  is 
to  be  paid  to  Moore  ;  and  the  (question  is, 
whether  the  name  so  inserted  and  written 
by  the  defendant  is  a  sufficient  signing. 
The  purport  of  the  statute  is  manifest,  to 
avoid  all  parol  agreements,  and  that  none 
should  have  effect  but  those  signed  in  the 
manner  therein  specitied.  It  is  argued 
that  the  name  being  iuserted  in  any  part 
of  the  writing  is  a  sufficient  signature. 
The  meaning  of  the  statute  is  that  it  should 
amount  to  an  acknowledgment  by  the 
party  that  it  is  his  agreement,  and  if  the 
name  does  not  give  such  authenticity  to 
the  instrument,  it  does  not  amount  to 
what  the  statute  requires.  Here  the  in- 
sertion of  the  name  has  not  this  effect. 
This  memorandum  might  be  drawn  sub- 
ject to  additions  or  alterations,  and  does 
not  appear  to  be  the  final  agreement  of  the 
parties,  and  indeed  as  far  as  we  can  admit 
parol  evidence,  it  is  proved  not  to  be  so, 
for  the  subject  of  repairs  is  not  mentioned 
in  the  instructions  ;  which  shows  the  ends 
of  the  statute  are  not  to  be  obtained  if  so 
informal  a  paper  is  to  be  admitted  as  a 
written  agreement.  No  case  has  been  ad- 
duced in  point  ;  but  it  has  been  compared 
to  the  case  of  wills,  where  a  name  written 
in  the  introduction  has  been  considered  as 
a  signature  ;  but  that  seems  to  me  a  very 
different  case.  The  cases  on  wills  have 
been  where  the  instrument,  importing  to 
be  the  final  instrument  of  the  party,  has 
been  formally  attested,  and  it  is  in  its  na- 
ture complete,  and  the  only  question  has 
been  whether  the  form  of  the  statute  has 
been  complied  with.  In  the  present  case, 
I  think  it  is  by  no  means  so,  and  it  would 
be  of  very  dangerous  tendency  to  admit 
the  memorandum  to  be  an  agreement 
within  the  statute."  In  Duncuft  i'.  Al- 
brecht,  12  Sim.  189,  196,  the  analysis  of 
the  holding  in  Stokes  v.  Moore,  1  Cox, 


219,  is  that  in  that  case,  a  further  act  was 
contemplated,  and  as  that  act  was  not 
done,  there  was  no  concluded  agreement 
between  the  parties. 

In  Godwin  v.  Francis,  L.  R.  5  C.  P. 
295,  the  plaintiff,  by  letter,  off'ered  to  buy 
an  estate  for  a  given  sum.  The  defendant 
answered  by  telegram  :  "  Your  offer  for 
the  L.  estate  is  accepted."  The  instruc- 
tions for  the  message  were  signed  by  the 
defendant  ;  but  the  telegram  received  by 
the  plaintiff  merely  contained  the  names 
of  the  sender  and  the  receiver,  written, 
with  the  above  telegram,  by  the  com- 
])any's  clerk  in  the  usual  printed  fonn. 
This  was  held  to  be  a  sufficient  signature 
by  the  defendant  under  the  statute  of 
frauds,  to  render  him  liable  to  be  charged 
on  the  contract.  Brett,  J.,  on  this  point 
said  :  "  It  being  agreed  that  both  the  in- 
structions for  the  telegram  and  the  tele- 
gram itself  were  put  in,  I  think  there  is 
abundant  evidence  that  the  defendant  en- 
tered into  such  a  contract  as  would  have 
bound  himself  and  the  other  persons  for 
whom  he  professed  to  act,  if  he  had  had 
authority  from  them  to  make  the  contract. 
It  has  been  contended  that  the  signature 
of  the  defendant  to  the  instructions  for 
the  telegram  did  not  amount  to  a  signa- 
ture to  the  acceptance  of  the  contract. 
But  I  think  there  is  evidence  that  the  de- 
fendant, when  he  signed  the  instructions, 
intended  that  to  operate  as  his  signature 
to  the  contract,  and  that  it  constituted  a 
binding  contract  signed  by  him  if  he  had 
authority  to  enter  into  it.  Then  it  was 
objected  that  the  defendant's  name  appear- 
ing on  the  paper  received  by  the  plaintiff, 
was  insufficient  because  the  defendant  had 
no  power  to  delegate  to  the  telegraph  clerk 
an  authority  to  sign  his  name.  I  think, 
however,  it  must  be  assumed  as  against 
him  that  he  had  authority  to  delegate  to 
the  clerk  the  power  to  sign  for  hmi,  and 
that  the  signature  so  placed  was  binding 
upon  him.  In  either  point  of  view,  there- 
fore, there  was  a  sufficient  signature  to 
bind  the  principals  if  the  defendant  had 
authority  to  enter  into  the  contract  on 
their  behalf." 

2  3  Mer.  53,  62. 

8  In  this  case  there  was  no  actual  sig- 


PART   IX.]      THE   ESSENTIAL   REQUISITES   OP   THE   MEMORANDUM.      587 


In  a  case  in  the  House  of  Lords  it  was  held  that,  though  it  is 
not  necessary  that  the  signature  of  a  party  should,  within  the 
Statute  of  Frauds,  be  placed  in  any  particular  part  of  a  written 
instrument,  it  is  necessary  that  it  should  be  so  introduced  as  to 
govern  or  autlienticate  every  material  and  operative  part  of  the 
instrument.  Where,  therefore,  the  name  of  the  party  against 
whom  specific  performance  was  sought  to  be  enforced,  appeared 
in  different  parts  of  the  paper,  but  only  in  such  a  way,  that,  in 
each  case,  it  merely  referred  to  the  particular  part  where  it  was 
found,  and  that  part  was  in  the  form  of  reference  or  description, 
and  not  of  promise  or  undertaking ;  it  was  held  that  the  paper  did 
not  constitute  a  contract  signed  within  the  provisions  of  the  Stat- 
ute of  Frauds.^  In  this  case,  C,  proposing  to  marry  H.,  wrote  out 
a  paper  beginning  thus  :  "  In  the  event  of  a  marriage  between  the 
under-mentioned  parties,  the  following  conditions  for  a  marriage 
settlement  are  mutually  agreed  upon."     Then  followed  several 


nature  by  the  defendant,  the  party  to  be 
charged,  but  in  reply  to  a  letter  from  the 
plaintiff,  the  defendant  wrote  :  "  Mr.  Fol- 
janibe  presents  his  compliments  to  Mr. 
Ogilvie,  and  is  extremely  obliged  to  him 
for  his  note  and  for  the  very  liberal  and 
accommodating  terms  which  he  has  pro- 
posed, and,  in  consequence  of  it,  although 
Mr.  F.  is  still  of  the  same  opinion  as  to 
the  value  of  Mr.  O.'s  house,  according  to 
the  times,  he  will  not  trouble  Mr.  0.  with 
any  further  discussion,  but  agree  to  the 
terms  first  proposed,  to  give  £14,000  for 
the  premises,  including  fixtures  of  every 
description,  the  pier  and  chimney  glasses, 
etc."  This  was  held  to  be  a  sufficient 
signing  to  satisfy  the  statute.  So  in 
"White  V.  Procter,  4  Taunt.  209,  the  writ- 
ing of  the  purchaser's  name  by  an  auc- 
tioneer in  one  of  the  columns  of  his 
auction  book,  as  "Mr.  Stokes,"  was  held 
a  sufficient  signing  by  the  purchaser  to 
take  the  case  out  of  the  statute,  although 
after  the  sale  the  purchaser  refused  to  sign 
the  contract ;  denying  that  his  agent 
(Stokes)  had  power  to  do  so,  and  expressly 
directing  him  not  to  sign  the  contract. 
In  Wilford  v.  Beazely,  3  Atk.  503,  it  was 
held,  where  a  person  subscribed  a  deed  as 
a  witness  only,  which  she  knew  the  con- 
tents of,  as  she  signed  it  as  a  complete 
agreement,  it  was  a  signing  within  the 
statute.  Lord  Hardwicke  here  said  : 
"  The  meaning  of  the  statute  is  to  reduce 
contracts  to  a  certainty  in  order  to  avoid 
perjury  on  the  one  hand,  and  fraud  on  the 
other,  and,  therefore,  both  in  this  court 
and  the  courts  of  common  law,  where  the 
agreement  has  been  reduced  to  such  a  cer- 
tainty, and  the  substance  of  the  statute 
has   been  complied  with  in  the  material 


part,  the  forms  have  never  been  insisted 
upon.  The  word  party  in  the  statute  is 
not  to  be  construed  party  as  to  a  deed,  but 
person  in  general,  or  else  what  would  be- 
come of  those  decrees  where  signing  of 
letters  by  which  the  party  never  intended 
to  bind  himself,  has  been  held  to  be  a 
signing  within  the  statute  ?  There  have 
been  cases  where  a  letter  written  to  a 
man's  own  agent,  and  setting  forth  an 
agreement  as  concluded  by  him,  has  been 
deemed  to  be  a  signing  within  the  statute 
and  agreeable  to  the  provision  of  it."  in 
Lobb  V.  Stanley,  5  Q.  B.  174,  where  the 
defendant  wrote  his  name  at  the  com- 
mencement and  in  the  body  of  a  letter,  in 
the  third  person,  "Mr.  Stanley,"  omitting 
his  Christian  name,  it  was  held  a  sufficient 
signature  of  the  party  when,  as  in  that 
case,  he  authenticates  the  instrument  by 
writing  his  name  in  the  body  ;  and  that, 
as  the  initial  of  his  Christian  name  was 
enough,  and  as  he  might  omit  one  of 
two  Christian  names,  so  his  signature  by 
his  surname  alone  would  be  sufficient. 
So  in  Propert  v.  Parker,  1  Pu.ss.  &  My. 
625,  where  the  defendant  stated  an  agree- 
ment in  writing,  "  Mr.  Wilmot  Parker 
has  agreed,"  etc.,  this  was  held  to  be  a 
sufficient  signing  within  the  statute. 
Bleakey  v.  Smith,  11  Sim.  150;  Knight 
V.  Crockford,  1  Esp.  190;  Clason  v. 
Bailey,  14  Johns.  487,  and  Pcnniman  v. 
Hartshorn,  13  Ma.ss.  92,  are  to  the  same 
effect.  And  see  Coles  v.  Trecothick,  I)  Ves. 
234  ;  Shippey  v.  Derrison,  5  Ks)).  191  ; 
Schneider  v.  Norris,  2  M.  &  S.  286  ; 
Saunderson  v.  Jackson,  2  B.  &  P.  238  ; 
Hammersley  v.  De  Biel,  12  C|.  &  F.  45. 
1  Caton  V.  Caton,  L.  R.  2  H.  L.  127. 


588  COMMENTARIES   ON  SALES.  [BOOK  IV. 

sentences  n  which  the  names  of  C.  and  H.  were  mentioned  inci- 
dentally in  connection  with  the  subjects  of  the  proposed  settlement. 
The  name  of  neither  party  was  signed  to  the  paper,  which  was  de- 
livered by  C.  to  H.'s  solicitor  for  the  purpose  of  his  drawing  the  set- 
tlement. Two  of  the  clauses  in  it  appeared  to  have  been  stricken 
out  by  mutual  arrangement.  No  settlement  was  ever  executed. 
It  was  dispensed  with  by  H.  at  C.'s  request,  upon  C.'s  verbal  prom- 
ise to  give  H.  certain  advantages  by  his  will.  C.  died,  and  the  will 
was  not  found  to  fulfil  the  promise.  The  House  of  Lords  held 
that  H.  was  not  entitled  (independently  of  the  question  whether,  as 
a  matter  of  fact,  there  had  been  any  waiver)  to  specific  perform- 
ance of  the  arrangements  made  in  the  written  paper,  as  it  did  not 
constitute  a  contract  within  the  meaning  of  the  Statute  of  Frauds. 
And  as  a  signing  is  required,  where  the  name  of  the  party 
whom  it  is  sought  to  charge  does  not  appear  in  the  writing,  even 
though  the  whole  of  the  writing  be  the  production  of  the  party, 
this  does  not  satisfy  the  statute.  Thus,  in  Hubert  v.  Moreau,^ 
where  there  was  a  letter  written  by  the  defendant,  in  which 
his  name  did  not  appear,  nor  was  it  signed  by  him,  it  was  held 
that  the  statute  was  not  satisfied.  So,  in  Selby  v.  Selby,^  where  a 
letter  from  a  mother  to  her  son  began  "  My  dear  Robert,"  and 
concluded  "  your  affectionate  mother,"  it  was  held,  that  this  was 
not  signed  so  as  to  constitute  a  binding  agreement  on  the  part  of 
the  mother  within  the  intent  of  the  statute.  And  in  Hawkins  v. 
Holmes,^  where  a  draft  of  a  conveyance  was  received  by  the  de- 
fendant, who  made  several  alterations  therein  and  delivered  it 
back  to  the  attorney  to  be  engrossed ;  it  was  claimed  that  the 
defendant's  "  altering  the  draft  with  his  own  hand  was  as  a  sign- 
ing, it  not  being  material  to  what  part  of  the  draft  he  had  set  his 
hand."  But  it  was  answered,  that  the  statute  requires  that  the 
party,  or  some  person  by  him  lawfully  authorized,  should  sign  the 
writing ;  and  though  the  defendant  had  altered  the  draft  with  his 
own  hand,  yet  that  this  could  not  be  called  a  signing ;  that  the 
statute  requires  signing  as  a  material  circumstance,  which  is  not 
to  be  dispensed  with  in  equity,  any  more  than  at  law ;  that  if  the 
defendant  had  himself  written  over  the  whole  deed  with  his  own 
hand,  without  signing  it,  this  had  not  been  sufficient,  for  the  stat- 
ute has  made  signing  absolutely  necessary  for  the  completion  of 
the  contract.  And  it  was  accordingly  held  by  Lord  Hardwicke, 
that,  unless  in  some  particular  cases  where  there  has  been  an 
execution  of  the  contract  by  entering  upon  and  improving  the 
premises,  the  party's  signing  the  agreement  is  absolutely  neces- 
sary for  its  completion.* 

1  12  Moo.  216.  8  1  P.  Wms.  770. 

2  3  Mer.  2.  *  To  the  same  effect  is  Ithel  v.  Potter, 


PART   IX.]       THE   ESSENTIAL  REQUISITES   OP   THE   MEMORANDUM.      589 


In  Johnson  v.  Dodgson,i  the  plaintiffs'  traveller  called  on  the 
defendant  with  samples  of  hops,  and  agreed  with  him  for  the  sale 
of  the  hops  in  question.  The  defendant  then  wrote  a  memor- 
andum in  a  sample  book  of  his  own,  which  he  retained  in  his  own 
possession,  and  which,  at  his  request,  was  duly  signed  by  the 
plaintiffs'  traveller.  The  memorandum  of  the  sale  commenced : 
"  Sold  John  Dodgson."  This  was  held  to  be  a  sufficient  signing 
by  the  defendant  to  satisfy  the  statute.  The  principle  of  the  deci- 
sion is  thus  stated  by  Lord  Chief  Baron  Abinger  :  "  The  Statute 
of  Frauds  requires  that  there  should  be  a  note  or  memorandum  of 
the  contract  in  writing,  signed  by  the  party  to  be  charged.     And 


1  P.  Wms.  771,  n.  ;  determined  at  the 
Rolls,  Trin.,  1719,  on  the  same  point. 
And  see  Whitbread  v.  Biockhurst.  1  Bro. 
Ch.  Cas.  404.  In  Selby  v.  Selby,'3  Mer. 
2,  6,  Sir  William  Grant  said,  "That  it  is 
a  very  forced  construction  of  the  words  of 
the  statute  to  say  that  the  use  of  the  mere 
ordinary  terms  of  ceremony  constitutes  a 
compliance  with  the  regulations  it  pre- 
scribes. It  is  not  enough  that  the  party 
may  be  identified.  He  is  required  to  sign. 
And,  after  you  have  completely  identified, 
still  the  question  remains,  whether  he  has 
signed  or  not.  There  may  be  in  the  in- 
strument a  very  sutficient  description  to 
answer  the  purpose  of  identification  with- 
out a  signing  ;  that  is,  without  the  jiarty 
having  either  put  his  name  to  it,  or  done 
some  other  act  intended  by  him  to  be 
equivalent  to  the  actual  signature  of  the 
name  ;  such  as  a  person,  unable  to  write, 
making  his  mark.  But  it  was  never  said, 
because  you  may  identify  the  writer,  there- 
fore there  is  a  signature  within  the  mean- 
ing of  the  statute.  If  so,  the  word  '  I '  or 
'  me  '  would  be  enough,  provided  you  can 
prove  the  handwriting."  In  Hubert  v. 
Moreau,  2  C.  &  P.  528,  at  nisi  prius,  the 
instrument  relied  on  was  written  by  the 
defendant,  had  no  name  attached  to  it, 
but  something  that  looked  like  an  M. 
It  was  claimed  that  this  was  a  signing  as 
required  by  the  statute.  Best,  C.  J., 
looking  at  it,  observed  :  "  It  may  be  an 
M,  or  it  may  be  a  waving  line  ;  but  if  it 
be  an  M,  I  am  of  opinion  that  it  is  not 
sufficient,  as  the  statute  requires  that  the 
promise  should  be  signed.  It  is  not  the 
signature  of  a  man's  name  ; "  and  refused 
to  allow  evidence  to  be  given  to  show  that 
the  defendant  usually  signed  in  that  way. 
In  the  case  in  bank,  Hubert  v.  Moreau,  12 
Moo.  216,  the  decision  of  Best,  C.  J.,  was 
sustained,  the  court  saying:  "The  stat- 
ute requires  that  the  promise  shall  be  in 
writing,  and  signed  by  the  party.  Here, 
the  letter  containing  the  promise  is  in  the 
handwriting  of  the  defendant,  but  it  bears 
no  signature.     Undoubtedly,  a  signing  by 


a  mark  would  satisfy  the  meaning  of  the 
statute ;  but  here  there  is  nothing  in- 
tended to  denote  a  signature,  nor  does  the 
name  of  the  defendant  appear  in  any  part 
of  the  letter." 

But,  as  was  held  by  Sir  William  Grant, 
in  Selby  v.  Selby,  3  Mer.  2,  5,  in  effect, 
though  an  agreement  be  not  signed,  where 
there  is  a  reference  to  the  agreement  in 
some  other  instrument  having  a  proper 
signature,  that  will  be  a  suttieient  signing 
of  the  agreement  within  the  statute,  la 
Tawney  v.  Crowther,  3  Br.  Cli.  Cas.  318, 
Lord  Chancellor  Thurlow  said  :  "If  the 
letter  contains  the  terms  of  the  agreement, 
or  if  it  refers  to  another  paper  wliich  con- 
tains the  terms,  that  is  sufficient  ;  for  I 
am  of  opinion,  that  if  a  letter  refers  so 
clearly  to  an  agreement  as  to  show  what 
was  meant  by  the  parties,  where  the  exist- 
ence of  the  paper  is  proved  by  parol,  that 
will  take  the  case  out  of  the  statute."  So, 
in  Coles  v.  Trecothick,  9  Yes.  234,  250, 
Lord  Eldon  said :  "  Though  the  agree- 
ment is  not  signed,  if  the  letter  contains 
all  the  terms,  and  describes  the  considera- 
tion and  all  the  circumstances,  so  that  by 
the  contents  of  the  letter  it  can  be  con- 
nected and  identified  with  the  agi'cement, 
the  letter,  which  not  only  is  not  a  signa- 
ture, but  is  the  last  of  all  things  that  can 
be  called  signing  the  agreement,  is  a  writ- 
ing signed  ;  which,  ascertaining  the  con- 
tents of  the  agreement,  amounts  to  a  note 
or  memorandum  of  it,  and  tlierefore  satis- 
fies the  statute."  We  examine  fully,  iufra, 
many  of  the  important  cases  relating  to  the 
connecting  of  papers  to  furnish  the  writ- 
ten evidence  roipiired  by  tiie  statute.  As 
to  the  actual  holding  in  Tawney  v. 
Crowther,  3  Dr.  Ch.  Ciis.  318,  see  per 
Lord  Redesdalc  in  Cliiian  v.  Cooko,  1  S.Oi. 
&  Lef.  33.  And  see  lihigden  v.  Bnull>car. 
12  Ves.  471  ;  Hinde  v.  Wliitchousr,  7 
East,  5.o8  ;  Sanndersnn  v.  .Iiicksiin,  '1  15. 
&  P.  233  ;  Allen  v.  Bi'nn.-tt,  W  Tiiuiit. 
169  ;  Western  v.  Husseli,  3  Ves.  k  H.  187. 

1  2  M.  &  W.  653. 


590 


COMMENTARIES   ON   SALES. 


[book   IV. 


the  cases  have  decided  that,  although  the  signature  be  in  the  be- 
ginning or  middle  of  the  instrument,  it  is  as  binding  as  if  at  the 
foot  of  it ;  the  question  being  always  open  to  the  jury,  whether 
the  party,  not  having  signed  it  regularly  at  the  foot,  meant  to  be 
bound  by  it  as  -it  stood,  or  whether  it  was  left  so  unsigned  because 
he  refused  to  complete  it.  But  when  it  is  ascertained  that  he 
meant  to  be  bound  by  it  as  a  complete  contract,  the  statute  is 
satisfied,  there  being  a  note  in  writing  showing  the  terms  of 
the  contract,  and  recognized  by  him.  I  think  in  this  case  the 
requisitions  of  the  statute  are  fully  complied  with.  The  written 
memorandum  contains  all  the  terms  of  the  contract ;  it  is  in  the 
defendant's  own  handwriting,  containing  his  name,  and  it  is 
signed  by  the  plaintiffs  through  their  agent."  ^ 

Although,  as  we  have  seen,  sealing  is  not  signing  within  the  mean- 
ing of  the  statute,  yet  it  is  well  settled  that  a  signature  may  be 
by  a  mark  intended  for  a  signature  by  an  illiterate  person ;  ^  or  by 


1  In  this  case  counsel  asked  :  "  Sup- 
pose the  defendant  had  simply  made  a 
memorandum  in  his  own  book  that  on 
such  a  day  the  plaintiffs  sold  to  hira, 
would  that  be  sufficient?"  Parke,  B., 
replied  :  "  If  he  meant  it  to  be  a  memo- 
randum of  a  contract  between  the  parties, 
it  would ;  not  so  if  he  meant  it  to  be  a 
mere  memorandum  to  be  kept  by  him  for 
himself."  And,  in  his  judgment,  Parke, 
B.,  also  said  :  "Here  the  entry  was  writ- 
ten by  the  defendant  himself,  and  required 
by  him  to  be  signed  by  tlie  plaintiffs' 
agent.  That  is  amply  sufficient  to  show 
that  he  meant  it  to  Lie  a  memorandum  of 
contract  between  the  parties."  Of  course, 
these  observations  are  based  on  the  fact 
that  the  memorandum  referred  to  has 
been  signed  to  satisfy  the  statute. 

2  The  first  reported  case  in  which  it. 
was  questioned  whether  the  statute  of 
frauds  is  satisfied  by  a  marksman  making 
his  mark  for  a  signature,  seems  to  have 
been  Harrison  v.  Harrison,  8  Ves.  185, 
A.  D.  1803.  There,  of  the  three  wit- 
nesses who  attested  a  will,  two  of  them 
did  so  by  setting  their  marks.  On  the 
authority  of  an  unreported  case  in  the 
Court  of  Common  Pleas,  Gurney  v.  Cor- 
bet, in  A.  D.  1710,  where  a  will  devising 
real  estate,  one  of  the  witnesses  being  a 
marksman,  was  held  well  executed  ;  Lord 
Eldon,  in  Harrison  v.  Harrison,  8  Ves. 
185,  sustained  the  will,  stating,  on  the 
authority  of  j\Ir.  Serjeant  Hill,  that  there 
had  been  a  great  many  other  cases  simi- 
larly decided.  This  holding  was  followed 
by  Sir  William  Grant,  in  Addy  v.  Grix, 
8  Ves.  504.  In  Grayson  v.  Atkinson 
(a.  d.  1752),  2  Ves.  Sen.  454,  456,  it  is 
said  by  counsel  that  "any  solemn  act,  as 


putting  a  mark,  is  the  same  as  signing  ;  " 
and  in  the  marginal  note  of  the  case  it  is 
said  to  have  been  held  that  the  attestation 
of  marksmen  is  good  under  the  statute  of 
frauds.  But  this  point  does  not  seem  to 
have  been  in  question  in  the  case,  and  the 
inference  is  that  in  this  case  all  the  wit- 
nesses attested  the  will  by  their  signa- 
tures. The  question,  however,  is  now 
well  settled,  that  while  sealing  is  not  sign- 
ing, to  satisfy  the  statute,  the  signing 
with  a  mark,  by  a  marksman,  intended 
for  a  signature,  satisfies  the  statute.  See 
per  Lord  Eldon,  in  Wright  v.  Wakeford, 
17  Ves.  454,  459.  In  Baker  v.  Dening, 
8  A.  &  E.  94,  it  was  held,  under  §§  5  and 
6  of  the  statute  (29  Car.  2,  c.  3),  the  mak- 
ing of  a  mark  by  a  devisor  is  a  sufficient 
signing,  and  that  it  is  not  necessary  to 
prove  that  he  could  not  write  his  name  at 
the  time.  It  was  conceded  there,  that 
where  a  party  is  unable  to  write,  the  affix- 
ing of  his  mark  is  a  sufficient  signature  ; 
that  where  a  party  cannot  write,  his  mark 
is,  in  fact,  his  only  signature  ;  and  that, 
therefore,  the  case  may  fall  within  the 
equity  of  the  statute.  But  it  was  claimed 
that  this  did  not  apply  to  the  devisor, 
who,  it  was  to  be  assumed,  could  have 
written  his  name  at  the  time  when  he 
made  his  mark.  But  the  court  refused 
an  inquiry  into  the  matter,  Lord  Den- 
man,  C.  J.,  saying:  "If  there  were  any 
doubt  at  all  on  this  question,  it  would  be 
very  fit  that  it  should  be  considered  ;  but 
if  there  be  none,  we  ought  not  to  create 
any  by  granting  a  rule.  It  has  been  urged 
that  sealing  is  insufficient ;  but  sealing  is 
one  thing,  signing  another.  The  mark  of 
a  person  not  capable  of  writing  is  allowed 
to  be  sufficient ;  and  I  never  heard  of  any 


PART   IX.]       THE   ESSENTIAL  REQUISITES   OF  THE   MEMORANDUM.      591 


stamping  a  name  as  a  signature  to  the  memorandum  in  writing.^ 
So,  the  name  of  the  vendor  printed  in  a  bill  of  parcels,  in  which  the 
name  of  the  purchasers  was  inserted  in  the  handwriting  of  the  ven- 
dor, was  held  to  be  a  sufficient  signing  to  satisfy  the  statute.^    And 


inquiry  being  made  whether  the  party 
making  the  mark  was,  at  the  time,  capa- 
ble of  writing.  Here  it  was  certainly  a 
matter  of  doubt  whether  the  party  could 
or  could  not  write  at  the  time.  It  is  not 
clear  that  he  could.  I  think  it  much  bet- 
ter that  there  should  be  no  inquiry  on 
such  a  point."  Littledale,  J.,  in  his 
judgment  in  the  same  case,  said  that 
under  the  statutes  of  3  and  4  Ann,  c.  9, 
§  1,  and  17  Geo.  3,  c.  30,  §  1,  which  re- 
quire signing,  the  requisite  is  satisfied  by 
a  mark.  Under  the  statute  of  limitations 
(21  Jac.  1,  c.  16,  as  affected  by  9  Geo.  4, 
c.  14.  §  1)  the  signing  must  be  "by  the 
party  chargeable  thereby,"  differing  in 
this  respect  from  the  statute  of  frauds. 
Under  the  former  act,  it  was  held  that  a 
letter  written  by  the  defendant's  wife,  in 
her  husband's  name,  and  sent  by  him  to 
the  plaintiff,  was  not  within  the  act.  Hyde 
V.  Johnson,  2  Bing.  N.  C.  776.  And  see 
Whippy  V.  Hilary,  3  B.  &  Ad.  399.  In 
the  former  of  these  cases  it  was  claimed 
that  according  to  this  construction  of  the 
statute,  a  party  unable  to  write  would  never 
be  capable  of  making  a  binding  acknowl- 
edgment of  a  debt.  But  it  was  answered 
that  the  signature  could  be  by  affixing  a 
mark,  as  in  other  cases.  And  Tindal, 
C.  J.,  dealing  with  the  point,  said:  "Some 
inconveniences  have  been  pressed  in  the 
course  of  the  argument  upon  our  attention, 
in  cases  where  a  total  inability  of  parties 
to  sign  may  exist ;  but  the  nature  of  the 
signature  which  is  necessary  to  comply 
with  the  requisites  of  the  statute  is  such, 
as  to  make  it  almost  impossible  to  suppose 
a  case  in  which  a  party  could  not  make 
such  a  signature  as  could  satisfy  the  stat- 
ute." Hyde  v.  Johnson,  2  Bing.  N.  C. 
at  p.  780.  And  see  Toms  v.  Cuming,  7 
M.  &  G.  88  ;  Lewis  t^.  Roberts,  11  C.  B. 
N.  s.  23  ;  Trotter  v.  Walker,  13  C.  B.  N.  .s. 
30 ;  Bruintitt  v.  Bremner,  9  0.  B.  N.  s.  1, 
15  ;  Hubert  v.  Moreau,  12  Moore,  216  ; 
Selby  V.  Selby,  3  Mer.  2,  6,  per  Sir  Wil- 
liam Grant. 

1  Per  Le  Blanc,  J.,  in  Schneider  v. 
Xorris,  2  M.  k  S.  286,  289:  "Suppose 
the  defendant  had  stamped  the  bill  of 
parcels  with  his  own  name,  would  not 
that  have  been  sufficient  ?  Such  a  stamp- 
ing, as  it  seems  to  me,  if  required  to  be 
done  by  the  party  himself  or  by  his  au- 
thority, would  afford  the  same  protection 
as  signing."  The  question,  however,  does 
not  seem  to  have  been  expressly  decided 
in  the  law  courts  in    England   until  the 


comparatively  recent  case  of  Bennett  v. 
Brumfitt,  L.  R.  3  C.  P.  28.  The  question 
came  up  there  under  the  6  Vic.  c.  18,  §  17, 
which  requires  that  a  notice  of  objection 
to  a  registration  "shall  be  signed  by  the 
party  objecting."  The  usual  signature  of 
the  objector  was  engraved  in  facsimile  on 
a  stamp,  and  the  objector  impressed  this 
stamp  upon  his  notice  of  objection.  It 
was  held  that  this  stamping  was  a  suffi- 
cient signing  within  the  statute,  and  it 
was  also  there  considered,  on  the  reasoning 
of  Lobb  V.  Stanley,  5  Q.  B.  574,  to  be  a 
good  signing  under  the  statute  of  frauds, 
and  under  the  statute  of  wills.  The 
ground  of  the  decision  is  well  stated  by 
Bovill,  C.  J.  :  "The  ordinary  mode  of 
affixing  a  signature  to  a  document  is  not 
by  the  hand  alone,  but  by  the  hand  coup- 
led with  some  instrument,  such  as  a  pen 
or  pencil.  I  see  no  distinction  between 
using  a  pen  or  a  pencil  and  using  a  stamp, 
where  the  impression  is  put  upon  the  pa- 
per by  the  proper  hand  of  the  party  sign- 
ing. In  each  case  it  is  the  personal  act 
of  the  party,  and  to  all  intents  and  pur- 
poses a  signing  of  the  document  by  him. 
If  the  objector  here  had  used  a  pencil  or  a 
paint-brush,  it  would  hardly  have  been 
contended  that  he  had  not  signed  the  no- 
tice." The  question  was  similarly  decided 
by  Sir  C.  Cresswell  in  the  Court  of  Pro- 
bate a  few  years  previously  (a.  d.  1863). 
There,  in  Jenkins  v.  Gaisford,  3  Swab.  & 
Tr.  93,  it  was  held  tiiat  as  signing  may  be 
by  making  a  mark,  and  it  can  make  no 
difference  whether  the  mark  is  made  by  a 
pen,  or  some  other  instrument,  therefore 
a  signature  impressed  with  a  stamp  .satis- 
fies the  statute.  And  see,  in  accord.  In 
goods  of  Emerson,  9  L.  R.  Ir.  443. 

2  Schneider  v.  Norris,  2  iMau.  &  S.  286. 
In  this  case  the  bill  of  parcels  was  headed, 
"London,  24th  October,  1812.  Messrs. 
John  Schneider  &  Co.  bought  of  Tiiomas 
Norris  &  Co. ; "  the  name  of  "  John  Sciinci- 
der  &  Co."  being  written  by  the  defend- 
ant, the  name  of  the  d(!fVndaiit  being 
printed.  Then  followed  a  list  of  tlie  ar- 
ticles sold,  with  the  particulars,  including 
quantities  and  prices.  In  an  action  for 
the  non-delivery  of  the  goods  sold,  it 
was  claimed  that  there  was  no  note  in 
writing  of  the  contract  signed  by  the  de- 
fendant. But  the  court  held  that  llie 
defendant,  by  his  having  written  the  ven- 
dee's name,  acknowledged  what  lie  liad 
written  to  be  for  the  |mrp()S(M)f  exhibiting 
his  recognition  of  tlie  contract  ;  and  tliat 


592 


COMMENTARIES  ON  SALES. 


[book  IV. 


it  seems  clear  that  the  signature  may  be  written  with  a  pencil ; 


his  printed  name  was  thus  recognized  as  a 
signature  sufficient  to  take  the  case  out  of 
the  statute.  And  in  Saunderson  v.  Jack- 
son, 2  B.  &  P.  238,  Lord  Eldon  was  of  the 
opinion  that  the  printed  name  in  a  similar 
bill  of  parcels  was  a  sufficient  signing  of  it 
to  satisfy  the  statute  ;  and'  there  says  on 
the  point:  "This  bill  of  parcels,  though 
not  the  contract  itself,  may  amount  to  a 
note  or  memorandum  of  the  contract  with- 
in the  meaning  of  the  statute.  The  single 
question  therefore  is,  Whether  if  a  man  be 
in  the  habit  of  printing  instead  of  writing 
his  name,  he  may  not  be  said  to  sign  by 
his  printed  name  as  well  as  by  his  written 
name.  It  has  been  decided  (Knight  v. 
Crockford,  1  Esp.  190  ;  Lemayne  v.  Stan- 
ley, 3  Lev.  1)  that  if  a  man  draw  up  an 
agreement  in  his  own  handwriting,  begin- 
ning, 'I,  A.  B.,  agree,  etc.,'  and  leave  a 
place  for  a  signature  at  the  bottom,  but 
never  sign  it,  it  may  be  considered  as  a 
note  or  memorandum  in  writing  within 
the  statute.  And  yet  it  is  impossible  not 
to  see  that  the  insertion  of  the  name  at 
the  beginning  was  not  intended  to  be  a 
signature,  and  that  the  paper  was  meant 
to  be  incomplete  until  it  was  further 
signed.  This  last  case  is  stronger  than 
the  one  now  before  us,  and  affords  an 
answer  to  the  argument  that  this  bill  of 
parcels  was  not  delivered  as  a  note  or 
memorandum  of  the  contract." 

1  In  Mr.  Sumner's  note  to  Seton  v. 
Slade,  7  Ves.  265,  n.  (c),  it  is  said  :  "The 
signature  may  be  with  a  lead  pencil." 
The  authorities,  however,  cited  in  the  note 
are  not  in  point.  And  we  have  seen  it 
stated  that  the  point  has  never  been  deter- 
mined. But  see  the  unquestionably  sound 
dictum  of  Bovill,  C.  J.,  in  Bennett  v. 
Brumfitt,  L.  R.  3  C.  P.  28,  quoted  by  us 
in  note,  supra.  In  Jeffrey  v.  Walton, 
1  Stark.  267,  a  memorandum  in  pencil 
was  received  by  Lord  EUenborough  a%  evi- 
dence of  an  agreement.  In  Kvmes  v. 
Clarkson,  1  Phillim.  22,  Sir  John  Nicoll 
was  of  opinion  that  a  will  written  by  a 
testator  with  a  pencil  would  be  valid,  pro- 
vided that  the  court  could  be  satisfied  that 
he  intended  so  to  execute  his  will.  In 
Green  v.  Skipworth,  1  Phillim.  53,  a  dis- 
position made  by  a  testator  in  pencil  was 
carried  into  effect ;  and  in  Dickinson  v. 
Dickinson,  2  Phillim.  173,  alterations  in 
pencil  on  a  regularly  executed  will  were 
admitted  to  probate.  Sir  John  Nicoll 
said  there  was  no  doubt  that  in  point  of 
law  they  must  be  considered  as  equally 
valid  as  if  made  in  ink,  provided  the  de- 
ceased intended  them  to  take  effect.  It 
was  held  in  Geary  v.  Physic,  5  B.  &  C. 
234,  that  an  indorsement  in  pencil  on  a 


promissory  note  was  good  ;  Bayley,  J., 
there  saying  :  "I  think  that  a  writing  in 
pencil  is  a  writing  within  the  meaning  of 
that  term  at  common  law,  and  that  it  is  a 
writing  within  the  custom  of  merchants. 
I  cannot  see  any  reason  why,  when  the  law 
requires  a  contract  to  be  in  writing,  that 
that  contract  shall  be  void  if  it  be  written 
in  pencil.  If  the  character  of  the  hand- 
writing were  thereby  wholly  destroyed,  so 
as  to  be  incapable  of  proof,  there  might  be 
something  in  the  objection  ;  but  it  is  not 
thereby  destroyed,  for,  when  the  writing 
is  in  pencil,  proof  of  the  character  of  the 
handwriting  may  still  be  given.  I  think, 
therefore,  that  this  is  a  valid  wnting  at 
common  law,  and  also  that  it  is  an  in- 
dorsement according  to  the  usage  and  cus- 
tom of  merchants  ;  for  that  usage  only 
requires  that  the  indorsement  should  be  in 
writing,  and  not  that  that  writing  should 
be  made  with  any  specific  materials." 
And  see  ilcDonnell  v.  Chambers,  1  Stobh. 
Eq.  347  ;  Merritt  i'.  Clason,  12  Johns. 
102  ;  Clason  v.  Bailey,  14  Johns.  484  ; 
Draper  v.  Pattina,  2  Speers,  202.  Where 
the  signature  is  by  pencil,  the  question  is 
whether  it  was  intended  by  the  signer  as 
a  final  act ;  or  whether  it  was  merely  de- 
liberative, and  it  will  be  treated  according 
as  it  was  the  one  or  the  other.  In  the 
Goods  of  Adams,  L.  R.  2  Pro.  &  Div. 
367  ;  Lucas  v.  James,  7  Hare,  410,  419  ; 
Francis  v.  Grover,  5  Hare,  39  ;  Martins  v. 
Gardiner,  8  Sim.  73  ;  Ravenscroft  r.  Hun- 
ter, 2  Hagg.  68  ;  Mence  v.  Mence,  18 
Ves.  348  ;  Hawkes  v.  Hawkes,  1  Hagg. 
321  ;  Edwards  v.  Astley,  1  Hagg.  490. 
Probate  was  granted  in  In  re  Dyer,  1  Hagg. 
219,  of  a  will  written  entirely  in  pencil 
by  the  deceased,  who,  a  few  days  before 
death,  declared  she  wished  it  to  operate  un- 
less altered.  On  the  other  hand,  in  Rymes 
V.  Clarkson,  1  Phillim.  22,  35,  where  a 
codicil  to  a  will  was  written  in  pencil,  the 
codicil  being  neither  signed  nor  dated,  Sir 
John  Nicoll,  in  revoking  the  probate  of 
the  codicil,  holding  that  it  was  merely  a 
deliberative  and  not  a  final  act,  said  :  "  It 
has  been  objected  that  it  is  written  in  pen- 
cil. To  this  it  has  been  replied  that  the 
deceased  had  a  right  to  write  liis  will  with 
a  pencil,  or  to  write  his  will  and  three 
codicils  in  ink,  and  a  fourtli  in  pencil  ; 
and  so  he  has,  undoubtedly,  and  it  would 
be  valid  in  law,  provided  the  court  could 
be  satisfied  that  he  intended  so  to  do. 
For  instance,  if  he  had  added,  I  have 
written  this  codicil  in  pencil,  but  intend 
it  shall  operate  as  my  will ;  or  if  it  could 
be  accounted  for  by  showing  that  he  had 
no  other  materials,  as  it  was  permitted  to 
the  dying  soldier  to  write  his  will   with 


PART   IX.J       THE   ESSENTIAL   REQUISITES   OF   THE   MEMORANDUM.      593 

as,  also,  that  the  signing  bj  initials  would  suffice  to  satisfy  the 
statute.^ 


his  sword  in  the  dust.  But  when  the 
question  to  be  decided  is  the  previous  one, 
whether  he  did  intend  this  paper  as  the 
Hnal  declaration  of  his  mind,  and  as  a  cod- 
icil, or  whether  it  was  merel}'  preparatory 
to  a  more  formal  disposition  ;  the  material 
with  which  it  is  written  becomes  a  most 
important  circumstance,  and  the  impor- 
tance of  it  is  still  further  increased  when 
the  court  sees  that  the  deceased  made  other 
codicils,  all  formally  written  in  ink,  one 
before  this  paper,  others  possibly  after  it. 
Then  the  natural  and  rational  conclusion 
is,  that  this  was  a  mere  memorandum  for 
future  deliberation,  and  not  a  finished  in- 
strument intendeii  at  all  events  to  become 
a  part  of  his  will,  or,  as  far  as  it  goes,  to 
alter  and  control  both  that  previous  will 
and  a  codicil  regularly  executed."  In 
Merritt  v.  Clason,  12  Johns.  102,  it  was 
contended  that  the  memorandum  was  not 
sufficient  because  it  was  written  with  a 
lead  pencil,  counsel  contending  that  if  it 
was,  then  a  writing  on  a  slate  or  with 
chalk  on  a  door  or  waH  would  be  a  good 
memorandum  within  the  statute  ;  and  that 
it  might  be  completely  effaced  in  a  mo- 
ment with  India  rubber  and  another  con- 
tract written  in  its  place  without  the 
possibility  of  detecting  the  fraud.  Bat 
the  court  held  that  the  signing  with  a  pen- 
cil was  good  ;  Piatt,  J.,  in  delivering  the 
judgment  of  the  court,  saying  :  "  I  have 
no  doubt  that  the  memorandum  required 
by  the  statute  may  as  well  be  written 
with  a  lead  pencil  as  with  a  pen  and  ink  ; 
and  it  is  observable  that  in  most  of  the 
reported  cases  on  this  head  the  memoran- 
da were  written  with  a  lead  pencil,  and 
no  counsel  until  now  has  ever  raised  that 
objection  "  (a.  d.  181.5).  As  a  matter  of 
fact,  in  connection  particularly  with  sales 
at  auction,  the  very  common  custom  for 
the  auctioneer  is  to  enter  the  purchaser's 
name  in  pencil.  Ives  v.  Hazard,  4  R.  I. 
14,  also  holds  that  a  signing  with  a  pencil 
satisfies  the  statute. 

1  Benjamin  says  :  "  Whether  a  signa- 
ture by  initials  would  suffice  seems  not  to 
have  been  decided  expressly."  Benj.  on 
Sales,  §  257.  The  question  seems  to  us 
one  whieli  is  quite  well  settled  in  Eng- 
land, Ireland,  and  in  this  country,  and 
iu  each  case  without  the  expn.'ssion  of  a 
doubt.  In  Chichester  v.  Cobb,  14  L.  T. 
N.  .s.  433,  a  letter  beginning  witii,  "My 
dear  M.  A.,"  and  signed  by  the  defendant 
with  his  initials,  "  E.  C,"  was  held  to 
sliow  an  absolute  promise  by  the  defend- 
ant to  satisfy  the  statute  of  frauds.  So, 
in  the  Supreme  Court  of  the  United 
States,   where   the   memorandum   of   the 


contract  was  signed  by  the  defendant  and 
by  the  agent  of  the  plaintiffs,  each  with 
his  respective  initials,  the  memorandum 
was  held  sufficient  to  take  the  case  out  of 
the  statute.  Salmon  Falls  Manuf.  Co.  v. 
Goddard,  14  How.  446.  In  Sanborn  v. 
Flagler,  91  Mass.  (9  Allen),  474,  the  note 
in  writing  of  the  contract  was,  "Will  de- 
liver J.  R.  &  Co.  best  refined  iron,"  etc., 
and  was  signed,  "J.  H.  F. ;  J.  B.  R.," — 
"J.  H.  F."  being  the  initiars  of  the  de- 
fendant, as  one  of  the  firm  of  Holdane  & 
Co.;  and  "J.  B.  R."  the  initials  of  one 
of  the  members  of  Sanborn,  Kichardson, 
&  Co.,  the  plaintiffs.  Bigelow,  C.  J.,  de- 
livering the  judgment  of  the  court,  said: 
"It  is  hardly  necessary  to  add  that  the 
signature  is  valiil  and  binding,  though 
made  with  the  initials  of  the  party  only, 
and  that  parol  evidence  is  admissible  to 
apply  them." 

On  the  same  principle,  it  was  held  by 
the  Supreme  Court  of  the  United  States, 
in  Barry  v.  Coombe,  1  Peters,  640,  that 
the  use  of  initials  in  the  description  of 
the  subject-matter  of  the  contract,  in  the 
memorandum  of  the  contract,  in  writing, 
to  satisfy  the  statute,  as  the  "  E.  B." 
wharf  and  premises,  was  sufficient ;  and 
that  parol  evidence  was  admissible  to  ex- 
plain what  the  "  E.  B."  wharf  and  prem- 
ises were.  So,  again,  in  Abbot  v.  Massie, 
3  Ves.  148,  legacies  to  "W.  G."  and 
"Mrs.  G."  were,  as  abstract  questions  on 
the  point  we  are  considering,  well  be- 
queathed to  the  parties  intended  to  take, 
which  was  open  to  proof  by  parol  evi- 
dence.    And  in  Price  v.  Page,  4  Ves.  679, 

a  legacy  to  " Piice,  the  son  of 

Price,"  was  sustained,  parol  evidence  hav- 
ing been  admitted  to  show  that  the  jilain- 
tili'  was  the  legatee  in  question.  In  Ire- 
land, In  the  Goods  of  Emerson,  9  L.  R. 
Ir.  443,  tlie  testator  stamped  his  initials 
on  his  will,  and  it  was  held  that  tlir  will 
was  sufficient! V  signed  by  him.  And  see 
Gorrie  v.  Woodley,  17  Ir.  C.  L.  P.  221. 
And  .see  Caton  v.  Caton,  L.  P.  2  II.  L. 
127,  143,  where  Lord  Westlniry  treated  the 
initials  of  the  parties  in  the  mcmoraiiduni 
under  the  statute  of  frauds  as  being  e<|\iiv- 
alent  to  their  names.  And  in  .lacob  v. 
Kirk,  1  Moo.  k  Rob.  221,  the  signature 
of  the  defendant  by  liis  initials  in  pencil, 
was  evidently  considen-d  by  Piirke,  P..,  a.s 
a  sufficient  signature  to  satisfy  the  stat- 
ute; but  the  memorandum  was  lield  to 
be  defective  under  tlie  statute  because  it 
did  nut  name  tin;  other  jiarty  to  the  con- 
tract. And  sec  Phillimtire  v.  Barry,  1 
Camp.  513,  where  the  initials  of  one  of 
the   members  of  the   firm,    "I.   M.  F.," 


88 


594 


COMMENTARIES   ON    SALES. 


[book  IV. 


As,  under  both  the  fourth  and  seventeenth  sections  of  the  stat- 
ute, the  note  or  memorandum  in  writing  is  required  to  be  signed 
by  only  the  party  or  parties  to  be  charged  by  the  contract,  bargain, 
or  agreement ;  it  is  now  conclusively  decided  that  it  is  sufficient, 
to  bind  the  party  or  parties  whom  it  is  sought  to  charge  by  the 
contract,  if  he  or  they  respectively  have  signed  the  note  or  mem- 
orandum of  the  contract,  even  though  the  other  party  or  parties  to 
the  contract  may  not  have  done  so.^ 


signed  by  the  auctioneer  to  a  memoran- 
dum of  the  contract,  was  held  to  be  a  suf- 
ficient signing  by  the  defendants,  by  their 
agent,  to  satisfy  the  statute  ;  the  defend- 
ants by  their  letter  having  recognized  the 
sale.  See  also  Sweet  v.  Lee,  4  Sc.  N.  R. 
77,  85,  90,  where  it  was  held  that  a  mem- 
orandum signed  with  the  initials  of  the 
parties,  "T.  L. ;  S.  S.,"  was  open  to  be 
explained  by  parol  as  to  this.  But  it  was 
held  bad  as  a  memorandum  of  a  con- 
tract not  to  be  performed  within  a  year, 
and  showing  no  consideration ;  and,  on 
that  ground,  it  was  held  not  to  satisfy 
the  statute.  Mr.  Benjamin  seems  to  have 
been  led  to  his  doubts  in  the  matter 
by  the  nisi  prius  holding  in  Hubert 
V.  Moreau,  2  C.  &  P.  528  (stated  by  us 
supra) ;  but,  as  he  himself  points  out,  after 
saying,  "  In  the  report  of  the  same  case, 
as  given  in  12  Moore,  216,  the  language 
of  the  court,  in  refusing  the  new  trial, 
would  indicate  that  as  a  question  of  fact 
there  was  no  mark  appended  to  the  writ- 
ing and  placed  there  by  the  writer  with 
the  intention  of  making  it  his  signature," 
adds,  "The  chief  justice  put  the  case  as 
follows  :  '  Undoubtedly  the  signing  by  a 
mark  would  satisfy  the  meaning  of  the 
statute ;  but  here  there  is  nothing  in- 
tended to  denote  a  signature,  nor  does 
the  name  of  the  defendant  appear  in  any 
part  of  the  letter.'  "  Benj.  on  Sales,  §  257. 
Chief  Justice  Best's  further  statement  was: 
"The  statute  requires  that  the  promise 
.  .  .  shall  be  in  writing,  and  signed  by 
the  party.  Here  the  letter  containing  the 
promise  is  in  the  handwriting  of  the  bank- 
rupt, but  it  bears  no  signature."  Hubert 
V.  Moreau,  12  Moo.  at  p.  218.  We  think 
it  quite  clear  that  a  signing  by  initials, 
where  it  is  intended  thereby  to  authen- 
ticate the  instruments,  is  a  perfectly  good 
signing  to  satisfy  the  statute. 

In  Wilson  v/Beddard,  12  Sim.  28,  33, 
where  it  was  held,  that  if  a  testator,  who 
is  unable  from  illness  to  sign  his  will,  has 
his  hand  guided  in  making  his  mark,  it  is 
a  sufficient  signature  within  the  statute 
of  frauds ;  it  was  contended  that  the  law 
was  wrongly  laid  down.  The  vice-chan- 
cellor, in  reply,  said  :  "Next  it  was  con- 
tended that  what  the  learned  judge  said 


with  reference  to  the  testator's  hand  being 
guided  when  he  made  bis  mark  to  his 
will,  was  not  law.  The  judge  said  that 
it  was  necessary  that  the  will  should  be 
signed  by  the  testator,  not  with  his  name, 
for  his  mark  was  sufficient  if  made  by  his 
hand,  though  that  hand  might  be  guided 
by  another  person ;  and,  in  my  opinion, 
that  proposition  is  correct  in  point  of  law. 
For  the  statute  of  frauds  requires  that  a 
will  should  be  signed  by  the  testator,  or 
by  some  other  person  in  his  presence  and 
by  his  direction  ;  and  I  wish  to  know  if  a 
dumb  man  who  could  not  write  were  to 
hold  out  his  hand  for  some  person  to 
guide  it,  and  were  then  to  make  his  mark, 
whether  that  would  not  be  a  sufficient  sig- 
nature of  his  will.  In  order  to  constitute 
a  direction,  it  is  not  necessary  that  any- 
thing should  be  said.  If  a  testator  in  mak- 
ing his  mark  is  assisted  by  some  other  per- 
son, and  acquiesces  and  adopts  it,  it  is  just 
the  same  as  if  he  had  made  it  without  any 
assistance."  On  the  principle  of  agency, 
such  a  signing  would  also  be  good  under 
the  4th  and  17th  sections  of  the  statute. 

1  Egerton  v.  Mathews,  6  East,  307 ; 
Stadt  V.  Lill,  9  East,  348  ;  Laythoarp  v. 
Bryant,  2  Bing.  N.  C.  735;  Buckhouse  v. 
Crosby,  2  Eq.  Cas.  Ab.  33;  Seton  v.  Slade, 
7  Ves.  275  ;  Coles  v.  Trecothick,  9  Ves. 
250  ;  Tawnev  v.  Crowther,  3  Br.  Ch.  Cas. 
161,  318;  Hatton  v.  Gray,  2  Br.  Ch.  Cas. 
164;  Lord  Armond  v.  Anderson,  2  Ball  & 
B.  370  ;  Western  v.  Russell,  2  Ves.  &  B. 
192;  Emmerson  v.  Heelis,  2  Taunt.  38; 
Allen  V.  Bennett,  3  Taunt.  169;  Saunder- 
son  V.  Jackson,  2  B.  &  P.  238;  Champion 
V.  Plummer,  1  B.  &  P.  N.  R.  252  ;  Fowle 
V.  Freeman,  9  Ves.  351;  Bowen  v.  Morris, 
2  Taunt.  387;  Knight  v.  Crockford,  1  Esp. 
190.  In  Laythoarp  v.  Bryant,  2  Bing. 
N.  C.  at  p.  746,  Vaughan,  J.,  points  out 
and  disposes  of  a  misconception  which  has 
existed  as  to  the  holding  of  Wain  v. 
Warlters,  5  East,  10,  thus:  "That  deci- 
.sion  never  turned  on  the  ground  that  the 
mutuality  of  a  contract  must  appear,  but 
only  that  the  note  or  memorandum  must 
show  the  consideration  as  well  as  the 
promise,  otherwise  all  the  inconveniences 
would  prevail  which  the  statute  was  meant 
to  obviate."     The  very  opposite  of  this  la 


PART   IX.]      THE   ESSENTIAL  REQUISITES   OP   THE   MEMORANDUM.      595 

But,  as  there  is  no  contract,  bargain,  or  agreement  without 
mutuality,  the  mere  fact  that  a  written  note  or  memorandum  of 
that  which,  on  its  face,  purports  to  be  a  contract,  in  which  the 
names  of  the  parties,  the  subject-matter,  and  the  consideration  are 
stated,  is  signed  by  one  whom  it  is  sought  to  charge  thereunder, 
does  not,  of  itself,  constitute  a  contract,  and  will  not  be  sufficient, 
unless  it  be,  in  fact,  a  note  or  memorandum  of  a  contract^  bargain, 
or  agreement,  assented  to  by  both  of  the  parties  to  it,  to  bind  the 
party  whom  it  is  sought  to  charge. 

Hence  it  results  from  these  two  principles,  namely,  that  there 
can  be  no  contract,  bargain,  or  agreement  without  the  aggregatio 
mentium  ;  the  consensus  ad  idem  ;  the  meeting  of  minds ;  and, 
that,  as  the  statute  only  requires  that  the  written  note  or  memor- 
andum of  the  contract,  bargain,  or  agreement,  must  be  signed  by 
the  party  or  parties  to  be  charged  therewith  or  thereunder ;  that 
such  contract  can  only  be  enforced  by  showing  the  assent  to  it  by 
the  party  or  parties  seeking  to  enforce  it,  in  order  to  show  that 
there  is  a  contract  at  all ;  and,  second,  that  such  assent,  which, 
with  the  written  note  or  memorandum,  shows  the  aggregatio  men- 
tium; the  consensus  ad  idem;  the  mutuality;  can  be  shown, 
either  by  the  writing  itself,  when  signed  by  both  the  parties,  or 
dehors  the  writing  relied  on  to  charge  the  party  to  it  who  has 
signed  it ;  and  that  this  evidence  aliunde  of  assent  may  be  either 
by  other  written  or  by  verbal  evidence.-^ 

In  Laythoarp  v.  Bryant,^  where  it  is  held  that  the  consideration 
must  appear  in  the  writing,  but  that  the  assent  of  the  other  party 

stated  in  Wood   on    Frauds,    653,    n.    2,  shown.     The  case  itself  merely  holds  that, 

thus:  "The  note  or  memorandum  of  the  under   the   statute,   the   consideration   as 

agreement  for  the  sale  and   purcliase   of  well  as  the  promise  must  be  in  writing, 

lands,  or  of  any  interest  in  or  concerning  and  that  parol  evidence  of  the  considera- 

them,  need  not  be  drawn  up  in  technical  tion  is  inadmissiliie.     See  the  whole  ques- 

language,  or  in  words  of  form,  but  there  tion  fully  discussed  in  our  last  preceding 

mtist  be  ivritten  evidence  of  an  aggregatio  Part.     And  see  Smith  v.  Neale,  2  C.  B. 

'mentium,    or  mutual   agreement,    em   the  N.  s.  67. 

•part  of  the  vendor  and  purchaser  to  sell  ^  In   Dykers    v.  Townsend,  24  N.  Y. 

and  to  buy."     This  is  opposed  to  the  prin-  57,  59,  the  view  was  expressed   that   to 

ciple  of  all  the  above-cited  cases,  and  is  make   a   contract   for  the   sale  of   goods 

not  law.     The  context  of  the  above  quota-  binding   under  the   statute,  tlie   note   or 

tion  clearly  shows  that  the  author  is  con-  memorandum  in  writing  sliould  be  signed 

founding  the  ?rt (<<««;%,  which,  as  we  have  by  both  of  the   parties  to  tiie  contract, 

shown  fully  in  our  last  preceding  Part,  But  in  the  later  case  of  Jiisticf  v.  Lang, 

need  not  appear  in  or  by  tlie  writing,  with  42  N.  Y.  493,  501,  the  sounder  view  was 

the  consideration,  which  must  so  appear,  taken,  in  accordance  with  tlie  previously 

Rayley,    J.,    in    Saunders    v.   Wakefield,  well-established  law,  that  it  was  only  ne- 

4   B.   &  Aid.   601,    relied   on   by  Wood,  cessary  to  be  signed   l>y  tlic  parly  to  be 

merely  points  out  that  there  must  be   a  charged  tlierel)y.     This   lias  always   been 

consideration  stated  in  the  writing,  and  held  tlie  law  in  the  courts  in  t!i<'  State  of 

makes  no  reference  whatever  to  the  ne-  New  York  itself.     See  Clnson  v.  Mcrritt, 

cessity   of   the    mutuality   so    appearing,  14  .Tolms.  484;  i'lallanl  r.  VVaikcr,  3  .Johns, 

while  the  whole  case,  and  the  numerous  60;  Pogct  w.  Merritt,  2  Caincs,  117;  Davis 

authorities  cited  on  p.  597  et  seq.,  make  it  v.  Shields,  26  Wetul.  ."Ml. 

clear  that  the  mutuality  need   not  so  be  "^2  P>ing.  N.  V.  735,  743. 


596  COMMENTARIES   ON   SALES.  [BOOK   IV. 

to  the  contract,  which,  with  the  written  note  or  memorandum  of 
the  contract  relied  on  by  the  party  seeking  to  enforce  it,  makes  the 
agreement,  the  mutuality  ;  Tindal,  C.  J.,  says  :  "  There  has  been 
a  little  confusion  in  the  argument  between  the  consideration  of 
an  agreement  and  mutuality  of  claims.  It  is  true  the  considera- 
tion must  appear  on  the  face  of  the  agreement.  ...  I  find  no  case, 
nor  any  reason  for  saying  that  the  signature  of  both  parties  is  that 
which  makes  the  agreement.  The  agreement,  in  truth,  is  made  he- 
fore  any  signatureJ^  And  where  the  agreement  is  not  the  result 
of  correspondence,  or  of  a  written  proposal,  subsequently  assented 
to,  such  is  usually  the  case.  But  this  "  agreement"  must  always 
exist,  or  there  is  no  bargain  or  contract.^ 

In  Allen  v.  Bennet,^  there  was  a  note  or  memorandum  of  the 
contract  signed  by  the  sellers  of  goods,  but  not  by  the  buyer, 
whose  name,  as  purchaser,  did  not  appear  in  the  writing.  While 
it  was  held  that  this  want  might  be  supplied  by  the  subsequent 
letters  of  the  sellers,  it  was,  in  effect,  conceded  and  held,  that  the 
assent  of  the  purchaser  might  be  shown  by  other  evidence  than 
that  of  the  written  note  or  memorandum  of  the  contract;  such 
assent  being  necessary  to  constitute  a  contract.  Thus,  Lord 
Mansfield  says  :  "  The  objection  is  not  that  there  is  no  assent  of 
the  plaintiff,  but  that  it  does  not  appear  by  the  memorandum  who 
the  buyer  was."  And  again,  "  The  defendant's  counsel  distin- 
guishes between  an  order  and  an  agreement  to  buy  ;  but  if  I  go 
to  a  shop  and  order  goods,  do  not  I  agree  to  buy  them  ?  The  ob- 
jection is  that  the  name  of  the  buyer  does  not  appear  in  this  book, 
but  if  it  sufficie7itly  appears  that  a  sale  ivas  agreed  on,  I  see  no  ob- 
jection why  it  should  not  be  made  out  what  was  the  name  of  the 
buyer  by  the  writing  of  these  very  defendants.  ...  It  was  then 
objected  that  one  party  who  has  not  signed  is  not  bound,  but  the 
fact  was  the  same  in  the  cases  of  Egerton  v.  Mathews,^  and  Cham- 
pion V.  Plummer,*  and  the  objection  was  never  taken  in  either  of 
these  cases ;  but  the  whole  of  this  case  supposes  that  the  plaintiff 
had  agreed.  Suppose  he  has  not  contracted  by  writing,  he  has  by 
paroiy  And  the  contract  was  sustained  against  the  sellers. 
Heath,  J.,  concurred  with  the  views  expressed  by  Lord  Mansfield, 
and  said  that  it  had  been  decided  that  a  voidable  promise  is  a  suf- 
ficient consideration  for  a  promise. 

So,  in  Shortrede  v.  Cheek,^  where  the  note  in  writing,  signed  by 
defendant,  referred  to  a  note  to  be  withdrawn,  the  withdrawing  of 
which  was  the  consideration  for  the  defendant's  promise  in  t^e 

1  See  per  Bosanquet,  J.,  2  Bing.  N.  C.  8  q  East,  307. 

747  et  seq.  *  1  B.  &  P.  N.  R.  252. 

2  3  Taunt.  169.  8  1  A.  &  E.  57. 


PART  IX.]       THE   ESSENTIAL   REQUISITES   OF   THE   MEMORANDUM.      597 

writing;  Parke,  J.,  in  his  judgment,  said:  "The  consideration 
being  executory,  the  plaintiff  is  to  show  that  he  has  fufilled  it,  and 
for  that  purpose,  must  of  necessity  prove  by  parol  evidence  that 
the  note  withdrawn  by  him  was  the  thing  meant  by  the  agree- 
ment." Here  the  consideration  for  the  promise  sufficiently  ap- 
peared by  the  writing,  but  the  accepting  (assenting  to)  and  acting 
on  it  were  shown  by  parol. 

The  matter  is  dealt  with  in  Warner  v.  Willington.i  There,  one 
of  the  grounds  of  a  demurrer  to  a  bill  for  specific  performance 
was  that  the  note  or  memorandum  in  writing,  under  the  fourth 
section  of  the  statute,  was  not  a  memorandum  of  agreement,  but 
only  of  an  offer  or  proposal,  which  the  defendant,  who  had  signed 
the  writing,  retracted  before  it  was  accepted  by  the  plaintiff.  The 
court  said :  "  Now,  there  is  a  clear  distinction  between  a  memor- 
andum of  offer,  and  a  memorandum  of  agreement.  In  the  case  of 
an  offer,  no  doubt  the  party  signing  it  may  at  any  time  before  ac- 
ceptance retract,  but,  if  it  be  an  agreement,  though  signed  by  one 
party  alone,  he  cannot  retract  at  his  pleasure,  but  all  he  can  do  is 
to  call  upon  the  other  party  to  sign  or  rescind  the  agreement.  A 
memorandum  of  agreement  supposes  that  the  two  parties  have  ver- 
bally/ made  an  actual  contract  with  each  other  ;  and  when  the  terms 
of  such  contract  are  reduced  into  loriting  and  signed,  that  is  suffi- 
cient to  hind  the  party  signing  ;  but  if  the  memorandum  is  of  an 
offer  only,  that  assumes  that  there  has  been  no  actual  contract  be- 
tween the  parties.  .  .  .  This  raises  another  question,  viz.,  whether 
acceptance  can  be  by  parol  without  writing,  and  it  is  singular  that 
I  cannot  find  any  case  in  which  it  is  determined  that  parol  accept- 
ance of  a  written  proposal  is  sufficient.  But  I  think  upon  princi- 
ple that  parol  acceptance  would  be  sufficient,  because  when  one 
party  has  signed  a  written  proposal,  and  the  other  expressly  ac- 
cepts it  by  parol,  —  as  if  he  says  in  express  terms, '  I  accept  the 
proposal,'  —  it  appears  that  it  reduces  it  to  a  case  of  parol  agree- 
ment come  to  between  the  parties,  and  a  memorandum  of  the  agree- 
ment signed  by  one,  in  which  case  it  is  clear  that  the  signature  of 
one  party  is  sufficient  to  bind  him,  although  the  other  has  not 
signed." 

In  this  case,  it  was  assumed,  on  this  reasoning,  that  a  written 
proposal  may  be  accepted  by  parol,  so  as  to  make  it  binding  as  an 
agreement  on  the  party  who  has  signed  it;  but  it  was  held  that 
such  acceptance  must  be  unambiguous  and  unconditional,  —  that,  in 
fact,  there  must  be  clear  evidence  of  the  acccf)taiu'c  of,  or  assent 
to,  the  actual  contract  sought  to  be  enforced  against  the  party 
who  has  signed  the  note  or  memorandum  in  writing.     But,  in 

1  3  Drew.  523,  531. 


598  COMMENTARIES   ON   SALES.  [BOOK  IV. 

Gibbins  v.  The  N.  E.  Met.  Asylum  District,^  where  the  defendants' 
agent  wrote  the  plaintiff's  agent  an  offer  of  £3000  for  a  specified 
property,  to  which  the  plaintiff's  agent  replied  "  We  accept  your 
offer  ;  "  adding,  with  reference  to  an  enclosed  memorandum  in 
writino-,  embodying  in  more  formal  words  "  the  terms  of  the  said 
contract,''  "  If  you  approve  of  the  enclosed,  sign  the  same,  and  on 
receipt  of  the  deposit,  we  will  sign  you  a  copy  ;  "  it  was  held  that 
there  had  been  a  sufficient  acceptance  of  the  contract  by  the  plain- 
tiff to  bind  the  defendants.^ 

In  Smith  v.  Neale  ^  it  was  expressly  held  that  a  written  pro- 
posal, containing  the  terms  of  a  proposed  contract,  signed  by  the 
defendant,  and  verbally  assented  to  by  the  plaintiff,  is  a  sufficient 
agreement  within  the  fourth  section  of  the  Statute  of  Frauds.  In 
this  case  there  was  a  note  in  writing  of  the  contract,  signed  by 
the  defendant,  and  orally  accepted  by  the  plaintiff.  The  court 
held,  following  the  opinion  expressed  by  Vice-Chancellor  Kinders- 
ley,  in  Warner  v.  Willington,^  that  a  proposal  signed  by  the  per- 
son to  be  bound,  and  verbally  accepted  by  the  person  to  whom  it 
is  made,  is  a  sufficient  agreement  to  satisfy  the  statute. 

In  Coleman  v.  Upcot,^  Lord  Keeper  Harcourt  "  decreed  defend- 
ant to  perform  this  agreement,  for  that  it  was  directly  within  the 
Statute  of  Frauds,  as  being  an  agreement  signed  by  the  party 
to  be  charged  with  the  same,  and  there  was  no  need  of  its  being 
signed  by  both  parties  ;  and  plaintiff  by  his  bill  had  submitted  to 
perform  his  part  of  the  agreement.  This,  though  it  was  not  at 
first  a  contract,  but  conditionally  only  if  the  other  would  accept 
it ;  yet,  when  the  other  had  accepted  of  it,  it  was  all  one."  ® 

In  the  Liverpool  Borough  Bank  v.  Eccles,"  J.  &  Co.  being  in- 
debted to  the  plaintiffs,  bankers ;  the  defendants,  by  a  writing  ex- 
pressed to  be  made  between  the  plaintiffs  and  defendants,  in 
consideration  of  the  agreement  thereinafter  contained  on  behalf 
of  the  plaintiffs,  agreed  that  they  would  pay  all  moneys  which 
then  were  or  at  any  time  should  be  due  from  J.  &  Co.  to  the 
plaintiffs,  not  exceeding  £35,000,  by  instalments  of  £3000  a  year 

1  11  Beav.  1.  cles,  4  H.  &  N.  139 ;  Baamann  v.  James, 

2  And  see  Skinner  v.  McDonall,  1  L.  R.  3  Ch.  508  ;  Cave  v.  Hastin|;s,  7  Q. 
De  G.  &  Sm.  26o;  Kennedy  v.  Lee,  3  Mer.  B.  Div.  125  ;  Long  v.  Millar,  4  C.  P.  Dir. 
455;  Fowle  v.  Freeman,  9  Ves.  351;  Mor-  450;  Charlewood  v.  Duke  of  Bedford,  1 
gan  V.  Halford,  1  Sm.  &  G.  101,  106  ;  Atk.  497  ;  Ogilvie  v.  Foljambe,  3  Mer. 
Abbott  V.   Sworder,  4  De  G.  &  Sm.  448,  53,  61. 

458;  Wood  v.  Midgly,  5  De  G.  M.  &  G.  41,  »  2  C.  B.  n.  s.  67. 

45  ;    Prince  v.  Prince,  L.  R,  1  Eq.   490,  *  3  Drew.  532. 

493  ;    Dunlop  v.   Higgins,  1   H.   L.  Cas.  5  2  Eq.  Cas.  Ab.  45. 

381,  394;  Adams  v.  Lindsell,  1  B.  &  Aid.  6  gee  Boydell  v.  Drummond,  11  East, 

681;  Countess  of  Dunmore  v.  Alexander,  142;  Donellan  v.  Read,  3  B.  &  Ad.  898; 

9  Shaw  &  Dun.  190  ;  Head  v.  Diggon,  3  Cherry  v.  Heming,  4  Ex.  631. 

M.  &  Ry.  97;  Thomas  v.  Deering,  1  Keen,  ^  4  h.  &  N.  139. 

729 ;  The  Liverpool  Borough  Bank  v.  Ec- 


PART   IX.]       THE   ESSENTIAL   REQUISITES   OF   THE   MEMORANDUM.      599 


for  five  years,  and  two  subsequent  annual  instalments  of  .£10,000; 
and,  in  consideration  of  the  above,  the  plaintiffs  agreed  that  they 
would  not  charge  more  than  5  per  cent,  interest  to  J.  &  Co. ;  and 
when  all  debts  of  J.  &  Co.,  except  .£15,000  should  have  been  paid, 
would  grant  them  a  full  release.  This  agreement  was  signed  by 
the  defendants,  and  handed  by  them  to  the  plaintiffs,  who  had 
pressed  for  it.  The  plaintiffs  had  acted  upon  it,  but  never  exe- 
cuted it.  It  was  held,  that  the  agreement  was  binding  upon  the 
defendants,  notwithstanding  that  it  had  not  been  executed  by  the 
plaintiffs.! 


1  Pollock,  C.  B.,  said  :  "In  Warner  v. 
Williugton,  3  Drew.  523,  Vice-Chaucellor 
Kiudersley  adopts  the  doctrine  that  where 
there  is  a  proposal  signed  by  the  person 
intended  to  be  bound,  and  accepted  by 
word  of  mouth,  it  is  sufficient.  If  the 
argument  had  raised  more  doubt  in  our 
minds  we  should  have  been  bound  by  the 
authorities,  and  it  would  have  been  neces- 
sary for  the  defendants  to  have  recourse  to 
a  court  of  error  to  alter  the  rule  which  has 
been  laid  down.  So  far  as  the  case  rests 
on  the  Statute  of  Frauds  the  defendants 
are  concluded  by  authority.  In  Champion 
V.  Plumnier,  1  B.  &  P.  K  K.  254,  though 
one  would  have  supposed  that  the  agree- 
ment was  intended  to  be  mutual,  the  court 
held  that  if  a  party  agrees  in  writing  duly 
signed  to  buy,  the  agreement  of  the  other 
party  to  sell  being  by  word  of  mouth,  the 
party  agreeing  to  buy  is  bound,  though 
the  agreement  would  not  have  been  en- 
forceable against  the  other."  And  Martin, 
B. :  "  If  1  were  not  of  the  same  opinion  I 
should  feel  myself  bound  by  Laythoarp  v. 
Bryant,  2  Bing.  N.  C.  735.  The  doctrine 
of  that  case  has  been  recently  recognized 
in  Smith  v.  Neale,  2  C.  B.  N.  s.  67,  and 
can  only  be  impeached  in  a  court  of  error. 
The  presumption  is  that  this  document, 
having  been  signed  and  handed  to  the 
bank,  was  intended  to  be  binding.  In 
Sheppard's  Touchstone,  285,  it  is  said  : 
'  If  lands  be  limited  to  a  man  by  way 
of  use,  or  granted  immediately  by  feoff- 
ment, gift,  grant,  or  rele.ise,  or  goods  or 
chattels  be  given  or  granted  to  a  man,  in 
these  cases  the  things  granted  shall  bo 
said  to  be  in  the  parties,  and  the  grant 
good,  before  notice  and  agreement,  and 
until  disagreement.  Tlie  law  presumes 
that  every  grant  is  for  the  benefit  of  the 
party,  and,  therefore,  until  tlie  contrary 
is  shown,  supposes  an  agi'eement  to  the 
grant.'  That  is  the  general  rule.  If  the 
defendants  had  chosen  when  the  agree- 
ment was  handcil  to  tlie  bank  to  say  that 
it  should  not  be  binding  unless  signed  by 
both  parties,  they  might  have  done  so. 
But  there   is   nothing  that  leads  to  the 


presumption  that  such  was  their  inten- 
tion. In  a  recent  case,  where  a  promis- 
sory note,  to  be  executed  by  two  sure- 
ties, was  signed  only  by  one,  I  left  it 
to  the  jury  to  say  whether  the  nature 
of  the  transaction  did  not  show  that  the 
understanding  was  that  the  surety  who 
executed  was  not  to  be  liable  unless 
both  signed.  But  that  is  a  different  mat- 
ter." And  Channell,  B. :  "I  agree  that 
the  rule  must  be  discharged.  Suppose 
that  the  plea  had  simply  stated  that  the 
agreement  was  not  signed  or  executed,  it 
would  have  been  open  to  dennirrer  on  the 
grounds  disclosed  in  Laythoarp  v.  Bryant, 
2  Bing.  N.  C.  735.  The  decisions  in  thjit 
case  and  Smith  v.  Neale,  2  C.  B.  N.  s.  67, 
are  binding  upon  us.  That  disposes  of 
the  question  upon  the  statute  of  frauds. 
But  was  the  guarantee  not  otherwise  .agreed 
to  in  fact.  Counsel  argued  that  the  un- 
derstanding was  that  the  instrument  was 
not  to  be  deemed  conijilete  until  it  wa.s 
signed.  If  I  agreed  with  him  I  should 
think  that  the  plea  was  made  out.  But 
it  does  not  follow,  because  the  parties  an- 
ticipated that  the  bank  would  sign,  that 
the  instrument  is  not  binding  without 
such  signature.  The  bank  has  acted  upon 
the  instrument,  and  that  is  enough." 

The  same  primiple  was  laid  down  by 
liord  Cranwortli  in  Meyneil  v.  Surtees, 
1  Jur.  N.  s.  737,  in  dislinguisiiing  be- 
tween an  offer  and  an  agrccnicnt,  tlius  : 
"There  is  no  doubt  tliat  it  [/'.  c,  the  i)aper 
signed  by  one  of  the  parlies]  does  not  pur- 
port to  be  a  contract  upon  the  fueo  of  it. 
It  is  a  mere  oiler  tliat  they  will  give  way- 
leaves  u{)on  certain  spcciticil  tcrni.s  ;  ami  if 
the  yiarties  to  whom  tliat  olfcr  was  mado 
had  accejited  it,  and  .said,  '  We  agree  to 
th.at,'  or  if  they  had  done  so  by  writing, 
or  had  witliout  writing,  by  word  of  mouth, 
said,  'We  will  act  upon  it.' and  liiid  taken 
it,  no  doubt  tliis  court  miglit  have  treated 
that  as  a  contract  ;  but  an  offer  is  n  very 
different  thing.  When  I  <iir<T  iinvtiiing 
to  a  person,  what  I  mnin  is,  I  will  do  that 
if  you  choose  to  assent  to  it,  meaning,  al- 
though it  is  not  so  exjin'SNcd,  if  you  ciiooso 


600  COMMENTARIES    ON   SALES.  [bOOK   IV. 

It  was  held  in  The  Mayor  of  Lyme  Regis  v.  Harley  ^  that  the 
acceptance  of  a  grant  may  impose  a  binding  obligation.  And 
Stokes  V.  Cox  2  and  Wheelton  v.  Hardisty^  show,  in  effect,  that 
if  the  intention  is  that  the  document  shall  first  be  executed 
by  both  parties  to  make  it  binding  on  either,  the  parties  must 
make  it  so  in  distinct  terms. 

The  point  decided  by  Smith  v.  Neale,*  and  which  was  followed 
in  the  Liverpool  Borough  Bank  v.  Eccles,^  with  reference  to  which 
point  Kindersley,  V.  C,  in  Warner  v.  Willington,^  says :  "  I  can- 
not find  any  case  in  which  it  is  determined  that  parol  acceptance 
of  a  written  proposal  is  sufficient,"  was  really  decided  in  an  old 
case  reported  in  Viner's  Abridgments 

In  this  case  the  defendant  made  an  offer  in  a  letter  addressed 
to  the  plaintiff,  to  sell  him  his  right  to  certain  tithes,  stating  that 
unless  the  plaintiff  would  take  them  upon  the  terms  named  in  the 
letter,  the  defendant  would  not  part  with  them.  This  letter  was 
taken  by  the  defendant's  son,  with  two  other  persons,  to  the  plain- 
tiff, and  as  soon  as  the  plaintiff  had  perused  the  letter,  he  verbally 
accepted  the  terms,  and  the  son  went  home  and  communicated 
the  fact  to  his  father.  "  The  lord  keeper  decreed  the  defendant 
to  perform  this  agreement,  for  that  it  was  directly  within  the 
Statute  of  Frauds,  as  being  an  agreement  signed  by  the  party  to 
be  charged  with  the  same,  and  there  was  no  need  of  its  being 
signed  by  both  parties,  and  the  plaintiff  by  his  bill  hath  submitted 
to  perform  what  was  required  of  his  part  to  be  performed.  If  a 
man,  being  in  company,  makes  offers  of  a  bargain,  and  then  writes 
them  down,  and  signs  them,  and  the  other  party  takes  them  up, 
and  prefers  his  bill,  this  shall  be  a  good  bargain,  and  the  party 
shall  be  compelled  to  a  specific  performance  of  it.  This,  though  it 
was  not  at  first  a  contract,  but  conditionally  only  if  the  other 
would  accept  of  it,  yet  when  the  other  had  accepted  of  it,  it  was 
all  one,  and  the  defendant  intended  it  so  by  his  sending  his  son 
with  the  letter,  and  two  persons  besides." 

The  authority  of  this  case  ^  was  recognized  in  the  latest  English 
case  on  the  subject,^  where  it  was  again  held,  that  a  proposal  in 
writing,  signed  by  the  party  to  be  charged,  and  accepted  by  parol 
by  the  party  to  whom  it  is  made,  is  a  sufficient  memorandum  or 
note  of  an  agreement  to  satisfy  the  statute.^^ 

to    assent    to    it    in    a    reasonable    time.  *  2  C.  B.  N.  s.  67. 

Whether  that  is  expressed  or  not,  such  an  *  4  H.  &  N.  139. 

offer,  I  should  say,  undoubtedly,  even  at  ^3  Drew.  523. 

any  time,  if  it  is  not  promptly  accepted,  "^  Coleman  v.  Cpcot,  2  Vin.  Ab.  527  ; 

is   evidently,  from  the  nature  of  things,  MS.  Rep.  Hillary  Vac.  5  Ann.  A.  D.  1705. 

revocable."  8  Miscited  there  as  Colejirave  v.  Upcot. 

1  1  Bing.  N.  C.  222.  »  Reuss  v.  Picksley.  L.  R.  1  Ex.  342. 

2  1  H.  &  N.  533.  10  Willes,  J.,  in  delivering  the  judgment 
*  8  E.  &  B.  232.  of  the  court,  said  ;   "  lu  point  ol  law  what 


PART  IX.]       THE   ESSENTIAL    REQUISITES   OF   THE   MEMORANDUM.      601 


The  same  sound  doctrine  as  is  established  by  the  foregoing  au- 
thorities was  also  recognized  and  acted  on  in  Ohio,  in  Thayer  v. 
Luce,^  where  none  of  the  English  authorities  on  the  subject  were 
alluded  to,  and  where  neither  court  nor  counsel  seem  to  have  been 
aware  of  their  existence.^ 

In  Himrod  Furnace  Co.  v.  The  Cleaveland,  &c.  R.  R.  Co.,^  the 
same  court  laid  down  the  doctrine  to  the  same  effect,  thus :  "  A 
written  proposal,  containing  the  names  of  the  contracting  parties 


was  the  effect  of  this  assent  ?  Putting  for 
the  moment  tlie  statute  of  frauds  out  of 
the  question,  no  inquiry  would  be  made 
as  to  the  precise  time  at  which  the  differ- 
ent parts  of  one  single  transaction  took 
place.  The  question  would  be,  Was  it  or 
was  it  not  one  transaction,  and  was  an  as- 
sent contained  in  it  ?  and  in  this  case  we 
are  of  opinion  that  the  transaction  was 
one,  and  did  contain  an  assent.  But  the 
statute  of  frauds  introduces  a  new  ele- 
ment, because  it  makes  it  necessary  by 
section  4  that  an  agreement  not  to  be  per- 
formed by  either  party  within  a  year  must 
be  in  writing,  signed  by  the  party  to  be 
charged  therewith.  Now  all  that  was 
signed  here  was  not  a  formal  agreement, 
but  a  proposal  on  one  side,  and  there  was 
an  assent  to  that  proposal  on  the  other. 
All  difficulty  as  to  the  terms  of  the  pro- 
posal is  out  of  the  case.  It  contained  the 
names  of  the  parties  and  all  the  terms  by 
reference  to  the  letter  of  September  8, 
which  must  be  taken  to  be  recited  in  the 
letter  of  the  9th.  The  only  question  is, 
whether  it  is  sufficient  to  satisfy  the  stat- 
ute that  the  party  should  sign  what  he 
proposes  as  an  agreement,  and  that  the 
other  party  should  afterwards  assent  with- 
out writing  to  the  proposal  ?  As  to  this  it 
is  clear,  both  on  reasoning  and  authority, 
that  the  proposal  so  signed  and  assented 
to  does  become  a  memorandum  or  note  of 
an  agreement  within  the  4th  section  of  the 
statute." 

1  22  Ohio  St.  62,  75. 

2  In  the  Ohio  case,  Mcllvaine,  J.,  in 
delivering  tlie  judgment  of  the  court, 
says  :  "  We  think  that  a  distinction  may 
well  be  taken  between  an  instrument  of 
writing  in  the  usual  form  of  a  deed  of  con- 
veyance which  has  never  been  delivered 
for  any  purpose,  or  which  has  been  de- 
livered for  the  purpose  of  transferring 
title,  and  a  like  instrument  which  has 
been  delivered  merely  as  an  evidence  of 
an  executory  contract,  or  as  evidence  in 
part  of  such  contract.  The  distirction 
exists  in  the  difference  of  intention  with 
which  the  acts  were  perfoimed,  and  the 
true  intent  in  either  case  must  be  deter- 
mined by  the  circumstances  of  the  act,  — 
by  the  res  gestae.    It  is  perfectlj'  clear  that 


such  an  instrument  delivered  by  the  ap- 
parent grantor  to  the  apparent  grantee, 
under  such  circumstances  as  repel  the 
conclusion  that  a  transfer  of  title  was  in- 
tended, is  inoperative  as  a  conveyance. 
And  it  appears  to  me  to  be  just  as  clear 
that  the  like  delivery  of  such  an  instru- 
ment, under  circumstances  which  show 
an  intention  to  make  a  proposition  to  sell 
the  property  therein  described,  on  the 
terms  therein  written,  is  a  legitimate  and 
proper  way  to  negotiate  a  contract  of  sale  ; 
and  instantly  that  the  terms  thus  pro- 
posed are  accepted,  the  contract  of  bar- 
gain and  sale  is  complete  ;  not  executed 
in  fact  by  transfer  of  title,  but  executory, 
and  evidenced  by  writing  signed  by  the 
vendor,  within  the  meaning  of  the  statute. 
Nor  does  it  matter  in  whose  jiossession 
the  instrument  may  afterwards  lie  placed. 
The  executory  contract  is  subsisting,  and 
will  continue  to  be  valid  and  binding 
upon  the  parties  until  mutually  rescinded 
or  consummated.  Such  is  the  case  under 
consideration.  The  deed  was  signed  by 
the  defendant  below,  and  delivered  to  the 
plaintiffs,  not  as  a  conveyance  of  title,  but 
as  an  evidence  of  their  executory  contract 
of  bargain  and  sale.  It  is  true,  the  proof 
of  the  delivery  of  the  instrument,  and  the 
acceptance  of  its  terms  by  the  plaintiffs, 
was  made  by  parol  teBtimony.  To  the 
admission  of  such  testimony  for  such  pur- 
poses we  see  no  objection.  Tlie  stitute 
requires  written  evidence  of  the  agreement 
to  the  extent  of  charging  the  dcrcndant. 
Beyond  that,  the  statute  iloes  not  indicate 
the  nature  of  the  evidence  requireil.  And 
there  is  no  reason  why  the  rule  re(|uiriiig 
written  evidence  should  be  extended  Ih-- 
yond  the  terms  of  the  statute.  It  inust 
be  observed  that  the  signature  ..f  tlie  de- 
fendant only  is  required,  and  it  must  bo 
further  observed  that  verbal  c.ntnicts 
touching  the  subject-matter  of  tlie  stat- 
ute are  not  declarcil  to  be  void.  It  fol- 
lows, therefore,  wc  think,  tliut  jmrol  testi- 
mony may  bo  admitted  for  tlie  purpose  of 
showing  that  the  plaint itf  agrre.l  to  and 
concurred  in  tlie  terms  of  the  writing  re- 
lied upon." 

8  22  Ohio  St.  451. 


602  COMMENTARIES   ON   SALES.  [BOOK  IV. 

and  all  the  terms  of  the  proposed  agreement,  signed  by  the  pro- 
ponent or  by  some  other  person  thereunto  by  him  lawfully  author- 
ized, when  accepted  and  assented  to  by  the  party  to  whom  the  same 
is  made,  is  sufficient  to  take  an  action  against  the  proponent, 
founded  thereon,  out  of  the  operation  of  the  Statute  of  Frauds. 
And  the  delivery  of  such  instrument  as  a  proposal,  and  tlie 
acceptance  thereof,  and  assent  thereto  by  the  party  to  whom  it 
is  made,  may  be  proved  by  parol  testimony." 

Ives  V.  Hazard  1  also  holds  that  where  there  is  a  writing  signed, 
under  the  statute,  by  the  party  to  be  charged,  the  assent  to  the 
contract  may  be  shown  by  evidence  aliunde? 

In  fact,  all  the  cases  which,  like  Ives  v.  Hazard,^  hold  the  clear 
doctrine  that  the  statute  is  satisfied  by  a  note  or  memorandum  in 
writing,  signed  by  the  party  to  be  charged,  in  effect  hold,  that  the 
assent  to  the  contract  by  the  other  party  to  it,  whom  it  is  not 
sought  to  charge,  may  be  shown  by  parol.'* 

But,  as  we  have  stated,  notwithstanding  the  writing  is  sufficient 
to  satisfy  the  statute  as  against  the  party  to  be  charged,  unless 
there  has  been,  in  fact,  an  assent  by  the  other  party,  as  there  is 
no  mutuality,  there  is  no  contract.  Thus,  in  Mozley  v.  Tinkler,^ 
the  defendant  signed  a  guarantee  to  the  following  effect :  "  Mr.  F. 
informs  me  that  you  are  about  publishing  an  arithmetic  for  him 

1  4  R.  I.  14.  2    Bing.    N.  C.   735  ;    Lord    Ormond  v. 

2  The  court  there  said:  "Now,  there  Anderson,  2  Ball  &  B.  370  ;  Allen  v.  Ben- 
is  here  proved  a  contract,  or  memorandum  net,  3  Taunt.  176  ;  Western  v.  Russell,  3 
of  a  contract,  in  writing,  which  is  signed  Ves.  &  B.  187;  Stratford  v.  Bosworth,  2 
by  the  party  here  sought  to  be  charged  Ves.  &  B.  341;  Haddlestone  v.  Briscoe,  II 
therewith.  It  is  objected  that  the  memo-  Ves.  583  ;  Tawney  v.  Crowther,  3  Br.  C.  C. 
randum  is  not  signed  by  the  other  party  161,  318  ;  Saunderson  v.  Jackson,  2  B.  & 
to  the  contract ;  but  we  do  not  deem  it  P.  238  ;  Champion  v.  Plumraer,  1  B.  &  P. 
necessary  that  it  should  be  signed  other-  N.  R.  252 ;  Hodgson  v.  Le  Bret,  1  Camp, 
wise  than  by  the  party  to  be  charged  233  ;  Phillimore  v.  Barry,  1  Camp.  513  ; 
therewith.  Ordinarily,  in  matters  not  Egerton  v.  Mathew.s,  6  East,  307;  Stadt 
affected  by  the  statute  of  frauds,  a  con-  v.  Lill,  9  East,  348  ;  Cooper  v.  Smith,  15 
tract,  if  it  be  proved,  must  be  held  bind-  East,  103  ;  Schneider  v.  N orris,  2  M.  & 
ing  on  both  parties,  though  it  be  uot  in  S.  286  ;  Kent  v.  Huskiuson,  3  B.  &  P. 
writing  or  signed  by  either  party.  In  233  ;  Jackson  v.  Lowe,  1  Bing.  9 ;  Ken- 
reference  to  a  contract  for  the  sale  of  land,  worthy  v.  Schofield,  2  B.  &  C.  945  ;  Chase 
the  statute  requires  that  it  shall  be  in  v.  Lowell,  7  Gra}',  33  ;  Tufts  v.  Plymouth 
writing,  and  signed  by  the  party  to  be  Gold  Mining  Co.,  14  Allen,  407;  Sanborn 
charged  therewith,  in  order  to  authorize  v.  Flagler,  9  Allen,  470 ;  Johnson  v.  Trin- 
an  action  upon  it.  This  is  all  that  the  ity  Church  Society,  14  Allen,  123 ;  Stod- 
statute  reiiuires.  Authorities  are  cited  dert  v.  Vestry  of  P.  T.  Parish,  2  Gill  &  J. 
to  support  the  proposition  that  it  is  not  227;  Barry  v.  Combs,  1  Pet.  64  ;  Penni- 
necessary  that  both  parties  should  sign  man  v.  Hartshorn,  13  Mass.  87;  Clason  v. 
the  contract.  But  the  point  does  not  Bailey,  14  Johns.  488  ;  Gale  v.  Nixon,  6 
need  to  be  sustained  by  authorities.  The  Cow.  445;  L'Ainoreux  v.  Gould,  3  Seld. 
statute  plainly  does  not  require  it."  349;    Lent  v.  Padelford,  10    Mass.   236; 

3  4  R.  I.  14.  Attwood  V.  Cobb,  16  Pick.  232  ;   Rogers 
*  See  further,  Hatton  v.  Grey,  1  Eq.     v.  Saunders,  16  Me.  97;  Bean  v.  Burbank, 

Cas.   Ab.  21 ;    Fowle  v.  Freeman,  9  Ves.  4  Shepl.   488  ;    Douglass  v.  Spears,   2  N. 

351;  Seton  v.  Slade,  7  Ves.  265  ;    Donell  &  McC.  207;  Roget  v.  Merritt,  2  Caines, 

V.   Dow,  1  Y.  &  C.  355;  Flight  v.  Bol-  ]17. 

land,  4  Russ.  298  ;  Laythoarp  v.  Bryant,  ^    1  C.  M.  &  R.  692. 


PART   IX.]      THE   ESSENTIAL  REQUISITES   OP   THE   MEMORANDUM.      603 

and  another  person,  and  I  have  no  objection  to  being  answerable 
as  far  as  .£50.  For  my  reference,  apply  to  B.  &  Co."  The  court 
held  that,  there  being  no  evidence  of  notice  to  the  defendant  of  the 
acceptance  of  this  offer  by  the  plaintiffs,  the  defendant  was  not 
bound.     Mclver  v.  Richardson,^  is  to  the  same  effect.^ 

In  the  Dayton,  &c.  Turnpike  Co.  v.  Coy,=^  the  defendant  signed 
a  written  memorandum  agreeing  to  do  certain  work  or  pay  for  it, 
provided  the  plaintiffs,  an  unincorporated  company,  located  their 
road  as  he  specified.  Subsequently,  the  plaintiffs,  on  becoming 
incorporated,  located  their  line  as  specified,  but  it  was  held  that 
as  there  was  no  contract  between  the  parties  the  defendant  was 
not  liable.  So,  in  Jackson  v.  Galloway,*  it  was  held  that  a  request 
on  the  one  side,  coupled  with  an  assent  on  the  other,  makes  the 
aggregatio  ynentium  which  constitutes  an  agreement.^ 

The  following  memorandum  of  sale,  which  was  made  by  the 
brokers  of  both  parties,  was  held  by  the  Supreme  Court  of  the 
United  States  to  bind  both  parties  to  the  contract,  under  the  New 
York  Statute  of  Frauds:  "New  York,  July  10,1867.  Sold  for 
Messrs.  Butler  &  Co.,  Boston,  to  Messrs.  A.  A.  Thompson  &  Co., 
New  York,  seven  hundred  and  five  (705)  packs  first  quality  Rus- 
sia sheet-iron,  to  arrive  at  New  York,  at  twelve  and  three-quarters 
(12|)  cents  per  pound,  gold,  cash,  actual  tare.  Iron  due  about 
Sept.  1,  1867.  White  &  Hazzard,  Brokers."  The  defendants 
contended,  that,  under  the  New  York  Statute  of  Frauds,  this 
contract  was  not  obligatory  upon  them ;  that  the  memorandum 
merely  showed  a  sale,  but  not  a  purchase.  And  this  view  was  sus- 
tained by  the  court  below.  The  Supreme  Court  of  the  United 
States  reversed  the  decision,  on  the  ground  that  the  memoran- 
dum which  showed  the  sale,  necessarily  showed  the  purchase,  as 
there  could  not  be  the  one  without  the  othcr.^ 

As  no  contract  is  complete  without  the  mutual  assent  of  the 
parties,  an  offer  to  sell  imposes  no  obligation  until  it  is  accepted 
according  to  its  terms.     So  long  as  the  offer  has  been  neither  ac- 

1  1  M.  &  S.  557.  478  ;  Ciimbcrliind  Valley  Ky.  v.  Baiih,  9 

2  See  Mason  v.  Pritchard,  12  East,  227;  Watts,  458  ;  Ileiidersoii  &  Niushville  Hy. 
Oxley  V.  Young,  2  H.   Bl.  613  ;  Jackson     v.  Lcavett,  IG  B.  Mon.  3.')8. 

V.  Galloway,  5  Bing.  N.  C.   75  ;  Nichols  «  Butler  v.  Thoiiii.son,  y2  V.  S.   412. 

V.    Raynbred,     Hob.    88   h  ;     Tucker    v.  In  this  case  the  Kellers  and  ]iiiicliMcr.s,  m 

Woods,    12  Johns.    190,    192;    Keep    v.  effect  as  such,  are  both  ex lui'ssly  named, 

Goodrich,   12  Johns.  397.  as  they  were  not  in  many  cases  whieh  havo 

3  13  Ohio  St.  84.  been  held  binding  ;  and  being  nmlr  to  Um 
*  1  M.  &  S.  71,  76.  dcfcndania,  as  admitted  liy  llie  signature 
6  See  Kennaway  v.  Troleaven,  5   M.  &  «f  their  agents,  it  wius  absuni  to  contend 

W.  501  ;  Charlewood  v.  Tho  Duke  of  BimI-  that  tliis  did  not  show  a  pnrrhase.  hy  thtm. 

ford,   1    Atk.   497  ;  Sparks  v.    Marshall,  2  See  Radf.ird  v.  Newell,  \..  U.  3  C  I*.  52, 

Bing.  N.  C.    761,   775  ;    Boston   &    Maine  where  a  memorandum  c'ulirely  lacking  in 

R.  R.  Co.  V.  r.artlctt,  3  Cush.  224  ;  Con-  the  very  clear  features  of  tlie  nieniorandum 

necticut,  &c.  R.  H.  Co.  v.   Bailey,  24  Vt.  in  Butler  v.  Thompson  was  sustained. 


604  COMMENTARIES   ON   SALES.  [BOOK   IV. 

cepted  nor  rejected,  the  negotiation  remains  open,  and  imposes  no 
obligation  upon  either  party  ;  the  one  may  decline  to  accept  or  tlie 
other  may  withdraw  his  offer  ;  and  either  rejection  or  withdrawal 
leaves  the  matter  as  if  no  offer  had  ever  been  made.  A  proposal 
to  accept,  or  an  acceptance  upon  terms  varying  from  those 
offered,  is  a  rejection  of  the  offer,  and  puts  an  end  to  the  negotia- 
tion, unless  the  party  who  made  the  original  offer  renews  it,  or 
assents  to  the  modification  suggested.  The  other  party,  having 
once  rejected  the  offer,  cannot  afterwards  revive  it  by  tendering 
an  acceptance  of  it.'^  If  the  offer  does  not  limit  the  time  for  its 
acceptance,  it  must  be  accepted  within  a  reasonable  time.  If  it 
does,  it  may,  at  any  time  within  the  limit  and  so  long  as  it  re- 
mains open,  be  accepted  or  rejected  by  the  party  to  whom,  or  be 
withdrawn  by  the  party  by  whom,  it  was  made.^ 

These  principles  were  applied  in  Minneapolis  &  St.  Louis  Ry.  v. 
Columbus  Rolling  Mill.^  On  December  5,  187&,  the  plaintiffs 
wrote  the  defendants  for  quotation  of  price  of  2000  to  5000  tons 
of  iron  rails,  for  March,  1880,  delivery.  On  December  8,  the 
defendants  answered,  quoting  price  for  2000  to  5000  tons,  add- 
ing, "  If  our  offer  is  accepted,  shall  expect  to  be  notified  of  same 
prior  to  Dec.  20,  1879."  On  December  16,  the  plaintiff's  tele- 
graphed and  wrote  an  order  for  1200  tons,  "  as  per  your  favor  of 
the  8th.  Please  reply."  On  the  18th,  the  defendants  telegraphed 
answer,  "  We  cannot  book  your  order  at  present  at  that  price." 
On  the  19th,  the  plaintiffs  telegraphed,  "  Please  enter  an  order  for 
2000  tons  rails,  as  per  your  letter  of  the  8th.  Please  forward 
written  contract.  Reply."  And  again  telegraphed  on  the  22d, 
"  Did  you  enter  our  order  for  2000  tons  rails  as  per  our  telegram 
of  December  19  ?  Answer."  After  repeated  similar  inquiries  by 
the  plaintiffs,  the  defendants  on  Jan.  19,  1880,  denied  the  exist- 
ence of  any  contract  between  the  parties.  The  court  held,  that 
the  defendants'  offer,  while  it  remained  open,  without  having  been 
rejected  by  the  plaintiffs  or  revoked  by  the  defendants,  would 
authorize  the  plaintiffs  to  take,  at  their  election,  any  number  of 
tons,  not  less  than  2000,  nor  more  than  5000,  on  the  terms  speci- 
fied. The  offer,  while  unrevoked,  might  be  accepted  or  rejected 
by  the  plaintiffs  at  any  time  before  December  20.  The  plaintiffs, 
instead  of  accepting  the  offer  made,  on  December  16,  by  telegram 
and   letter,  referring  to  the   defendants'  letter  of   December  8, 

directed  the  defendants  to  enter  an  order  for  1200  tons  on  the 

<w 

1  Eliason  v.  Henshaw,  4  Wheat.  225  ;  2  Boston  &  Maine  R.  R.  v.  Bartlett,  3 

CaiT  V.  Duval,  14  Pet.  77  :  National  Bank  Cash.  224;  Dickiuson  j;.  Dodds,  2  Ch.  D. 

V.  Hall,  101  U.  S.  43,  50;  Hyde  v.  Wrench,  463. 
3  Beav.  334  ;  Fox  v.  Turner,  1  Brad.  App.  »  119  U.  S.  149. 

153. 


PART   IX.]       THE   ESSENTIAL  REQUISITES   OF  THE   MEMORANDUM.       G05 

same  terms.  The  mention  in  both  telegram  and  letter  of  the 
date  and  the  terms  of  the  defendants'  original  offer,  showed  that 
the  plaintiffs'  order  was  not  an  independent  proposal,  but  was  an 
answer  to  the  defendants'  offer,  a  qualified  acceptance  of  that 
offer,  varying  the  number  of  tons,  and  therefore,  in  law  was  a  re- 
jection of  the  offer.  On  December  18,  the  defendants  having,  by 
telegram,  declined  to  fulfil  the  plaintiffs'  order,  the  negotia- 
tion between  the  parties  was  closed,  and  the  plaintiffs  could  not 
afterwards  fall  back  on  the  defendants'  original  offer.  The 
plaintiffs'  attempt  to  do  so,  by  the  telegram  of  December  19, 
was,  therefore,  ineffectual,  and  created  no  rights  against  the 
defendants.! 

But,  although  the  statute  does  not  require,  that,  to  make  a  con- 
tract binding  on  the  party  to  be  charged,  the  note  or  memorandum 
in  writing  must  be  signed  by  both  of  the  parties  to  the  contract, 
but  only  by  the  party  or  parties  to  be  charged ;  yet,  as  the  note  or 
memorandum  in  writing  must  be  of  the  contract,  bargain,  or 
agreement,  it  must,  to  satisfy  the  statute,  show  on  its  face,  or  by 
other  sufficient  writing  connected  therewith,  as  an  essential  part 
of  such  bargain,  contract,  or  agreement,  who  the  parties  to  it  are. 
The  leading  case  on  this  subject  is  Champion  v.  Plummer.^  In 
this  case  there  was  a  note  or  memorandum  in  writing,  signed  by 
the  defendant,  showing  the  sale,  by  the  defendant,  of  twenty  pun- 
cheons of  treacle,  but  the  name  of  the  plaintiffs,  the  purchasers, 
did  not  appear  in  the  writing.     Lord   Mansfield   nonsuited   the 

1  See  Hussey  v.  Hornc  Payne,  4  App.  duty  to  give  him  an  cfFectnal  introilnction 
Cas.  311  ;  Kidgway  v.  Wharton,  6  H.  L.  to  his  patients."  A  formal  agiecinent  was 
Cas.  338  ;  Rummens  v.  Robins,  3  De  G.  drawn  up,  but  never  signed  ;  and,  after 
J.  &  S.  88  ;  Winn  v.  Bull,  7  Ch.  Div.  29  ;  some  further  correspondence,  the  defend- 
Rossiter  v.  Miller,  3  App.  Cas.  238  ;  Bon-  ant  refused  to  complete  tin-  pmclnise.  It 
newell  v.  Jenkins,  8  Ch.  Div.  70  ;  Jervis  was  held,  alTirmiiig  the  decision  of  Bacon, 
t'.  Berridge,  L.  R.  8  Ch.  360.  The  plain-  V.  C,  that,  inasmuch  as  the  time  for  the 
tiff,  wishing  to  sell  a  medical  practice  with  commencement  of  the  j)\irchase  was  left 
the  lease  of  the  house  where  it  was  carried  uncertain,  and  the  stijmlation  as  to  the 
on,  placed  it  on  the  books  of  a  medical  three  months'  introduction  was  not  agreed 
agent.  This  led  to  negotiations  with  the  to,  and  as  the  parties  contcmplatcij  a  for- 
defendant.  The  premiums  asked  for  the  mal  agreement,  there  was  no  biiidiiig  .on- 
practice  and  for  the  lease  were  stated  in  a  tract  completed  between  the  part  lis.  and 
letter  from  the  agent  to  the  defendant,  but  the  action  was  dismissed.  Tljc  iiii<ir<-  was 
no  time  for  completing  the  purchase  was  also  raised  as  to  whether,  with  such  mat- 
mentioned.  The  defendant  rey)lied  in  a  ters  as  introductions  involv.-.l,  the  court 
letter  to  the  agent,  accepting  the  terms  could  enforce  .sjjecific  perforniiince  of^n 
ottered,  and  adding  that  he  should  be  contraet  tx>  sell  a  nn'dical  pra.'tiee.  Per 
ready  to  ]iay  the  deposit  money  "on  re-  .Tessel,  M.  R.:  "I  cannot  sec  my  way  to 
ceipt  of  corrected  agreement,"  and,  at  the  making  a  decree  for  sjMTiCn-  iwrlormance 
same  time,  he  wrote  to  the  jdaintiff  per-  of  an  agreement  to  jMirchase  n  medical 
sonally,  also  accepting  the  terms  ollered,  practice.  What  can  the  court  order  tlio 
and  adding:  "  I  shall  trust  to  you  to  give  seller  to  do  ?  "  May  d.  Thompson, 'JO  Ch. 
me  the  best  introduction  vow  can  during  D.  70.'),  715.  ... 
three  months,  and  afterwards  if  necessary."  ^  Hcforo  Mansfield,  C.  .!.,  »t  vi.ii  }>rni9, 
The  plaintiff  replied,  thanking  the  de-  .''.  Esp.  240  ;  h.  o.  in  bavk,  1  B.  &  V. 
fendant  for  acceding  to  his  terms,  and  .say-  N.  K.  252. 
ing  that  "  it  would  be  his  aim  as  well  as  his 


606  COMMENTAEIES   ON   SALES.  [BOOK   IV. 

plaintiffs.  The  full  court  sustained  the  nonsuit,  holding  that  the 
writing  was  not  a  note  or  memorandum  of  a  contract.^ 

In  Laythoarp  v.  Bryant,^  which  was  a  sale  by  auction,  the  de- 
fendant signed  a  memorandum  on  the  back  of  a  paper  containing 
the  particulars  and  conditions  of  sale,  in  which  it  appeared  that 
the  sale  was  by  auction,  by  Thomas  Ross,  by  order  of  W.  Lay- 
thoarp, the  proprietor.  It  was  objected  that  the  name  of  the 
vendor  did  not  sufficiently  appear  in  the  note  of  the  contract. 
But  the  court  held  that  it  did.  Tindal,  C.  J.,  said  :  "  I  admit  that 
an  agreement  is  not  perfect  unless  in  the  body  of  it,  or  by  neces- 
sary inference,  it  contain  the  names  of  the  two  contracting  par- 
ties, the  subject-matter  of  the  contract,  the  consideration,  and  the 
promise.  Looking  at  this  contract,  as  it  may  be  collected  from 
the  particular  of  sale,  it  appears  to  be  an  agreement  by  which 
Ross  sells  property  on  behalf  of  Laythoarp.  When,  in  the  outset, 
it  says  that  property  will  be  sold,  subject  to  conditions,  we  are 
referred  to  the  conditions  in  the  same  paper ;  and  there  we  see 
that  Ross  is  an  auctioneer  who  sells  for  Laythoarp.  That  gets  rid 
of  the  objection,  therefore,  that  Laythoarp's  name  is  not  contained 
in  the  contract." 

In  Jacob  v.  Kirk,^  the  doctrine  of  Champion  v.  Plummer  *  was 
followed,  Parke,  B.,  holding,  that  a  memoranduoi  of  sale  of  goods 
in  the  vendor's  l)Ook,  signed  by  the  vendee  in  initials,  the  vendor's 
name  not  appearing  in  the  book,  is  insufficient  to  satisfy  the  stat- 
ute ;  and  that  the  defect  is  not  cured  by  a  letter  from  the  vendee, 
in  which  the  vendor's  name  does  appear,  unless  tlie  letter  clearly 
refers  to  the  memorandum. 

In  Wheeler  v.  Collier,^  the  memorandum,  signed  by  the  pur- 
chaser, did  not  name  the  vendor,  and  it  was  held  that  the  statute 
was  not  satisfied.^ 

In  Nichols  v.  Johnson,'^  the  rule  is  laid  down :  The  note  or 
memorandum  of  sale  required  by  the  statute  must  state  the  con- 
tract with  such  certainty,  that  its  essentials  can  be  known  from 
the  memorandum  itself,  without  the  aid  of  parol  proof,  or  by  a 

1  Lord    Mansfield   said,    in    delivering  to  an}'  memorandnm  in  writing  of  a  bar- 

the  judgment  of  the  court:    "How  can  gain."     Champion  v.  Plummer,  1  B.  &  P. 

that  be  said  to  be  a  contract,  or  memo-  N.  P».  2o2,  254. 
randum   of  a  contract,    which   does   not  ^  2  Bing.  N.  C.  735. 

state   who   are   the    contracting    parties  ?  ^  2  Moo.  &  Rob.  221. 

By  this  note,  it  does  not  at  all  appear  to  *  1  B.  &  P.  N.  R.  252. 

whom   the   goods   were   sold.      It   would  ^  M.  &  Malk.  123. 

prove  a  sale  to  any  other  person  as  well  ^  gg^.  ^jg^^    Warner  v.   Willington,    3 

as  to  the  plaintitfs.     There  cannot  be  a  Drew.  523  ;  Sari  v.   Bourdillon,   1  C.  B. 

contract  without   two  parties,  and  it  is  n.    s.    188 ;    Boydell   v.    Drummond,    11 

customary  in    the   course   of  business  to  East,   142  ;  Thomas  v.  Deering,  1  Keen, 

state  the  name  of  the  purchaser  as  well  729  ;  Morgan  v.  Holfovd,  1  Sm.  &  G.  101; 

as  of  the   seller  in  every  bill  of  parcels.  Sheid  v.  Stamps,  2  Sneed  (Tenn.),  172. 
This  note  does  not  appear  tome  to  amount  "^  10  Conn.  192,  198. 


PART  IX.]       THE   ESSENTIAL   REQUISITES   OF   THE   MEMORANDUM.      607 

reference  contained  therein  to  some  other  writing  or  thing  certain; 
and  these  essentials  must  at  least  consist  of  the  subject  of  the 
sale,  the  terms  of  it,  and  the  parties  to  it,  so  as  to  furnish  evidence 
of  a  complete  agreement.  And,  in  this  case,  the  mem'orandura 
was  held  defective  because  it  did  not  disclose  the  name  of  the 
vendor. 

In  Long  V.  Millar  ^  the  memorandum  of  the  sale  was  held  de- 
fective because  it  did  not  disclose  the  name  of  the  vendor ;  but 
this  want  was  held  to  be  supplied  by  a  receipt  signed  by  the  ven- 
dor, and  which  was  connected  with  a  receipt  signed  by  the  vendee.''' 

But  where  the  agent  has  misdescribed  the  names  of  his  prin- 
cipals in  the  note  of  the  contract,  and  the  principals  have  subse- 
quently recognized  the  contract,  it  was  held  that  the  principals 
could  not  avoid  the  contract,  where  no  injury,  such  as  the  loss 
of  the  benefit  of  a  set-off,  had  resulted  to  them  from  the  misde- 
scription.^ And  where  an  auctioneer  had  signed  the  purchaser's 
initials  to  a  note  of  the  sale.  Lord  Ellenborough  held  that  the  pur- 
chaser's subsequent  letter  recognizing  the  sale,  coupled  with  the 
note  of  the  sale,  satisfied  the  statute.^ 

The  question  came  before  the  Privy  Council  in  Williams  v. 
Byrnes.^  There  it  was  held,  that  the  provisions  of  the  Statute  of 
Frauds  are  not  satisfied  unless  the  existence  of  a  bargain  or  con- 
tract appears  evidenced  in  the  writing,  and  a  bargain  or  contract 
cannot  so  appear  unless  the  parties  to  it  are  specified,  either  nomi- 
nally, or  by  description  or  reference.  Here,  the  defendant's  tes- 
tator, J.,  gave  to  one  H.,  for  the  purpose  uf  being  given  to  the 
plaintiffs,  a  note  in  writing  signed  by  J.,  as  follows :  "  I  will  fur- 
nish Mr.  H.  with  funds  for  the  purchase  of  a  steam-engine  and 
machinery  for  a  flour  mill,  on  his  suiting  himself  with  the  same, 
and  notifying  the  purchase  to  me."  H.  gave  the  instrument  to 
the  plaintiffs,  who,  on  the  basis  of  it,  agreed  to  and  did  furnish 
him  with  the  steam-engine.  J.  was  notified  thereof.  In  an  action 
against  the  executors  of  J.  for  the  price,  a  verdict  was  entered  for 
the  plaintiffs  ;  the  points  of  law  being  reserved  for  the  full  court, 
which  being  equally  divided,  the  verdict  was  sustained.  On  aj)i)eal 
to  the  Judicial  Committee  of  the  Privy  Council,  the  decision  was 
reversed.  The  case  was  distinguished  from  that  of  the  promise 
in  writing,  signed  by  one,  to  pay  any  one  unnamed,  who  shall 
furnish  goods  to  the  writer,  or  to  a  third  person  making  default, 

1  4  C.  P   Div.  450.  Boimlillon,    1   C.  P..  N.  s.  1S7  ;  ('()l<-s  v. 

2  See  Jones  v.  Ashburnham,  4  Kast,  Trecothick,  9  Ves.  234  ;  Williams  v.  Jot- 
4.')5,  466,  et  seq. ;  Schneider  ?;.  Norris,  2     dan,  6  f'h.  Div.  fil7. 

M.  &  S.  286  ;  Ramsbottom  v.  Mortley,  2  »  Mitrli<01  v.  Liipnge.  Tlolt,  2:>^. 

M.  &S.  445,  per  DRmpicr,  J.  ;  Saunder-  ■•  Philiiniorc  v.  Barry,  1  (,'iiin|>.  513. 

son  V.  Jackson,  2  B.  &  P.  238  ;  Sari  v.  ^  9  Jur.  n.  s.  303. 


608 


COMMENTARIES   ON   SALES. 


[book  IV. 


which  will  become  a  binding  contract  with  any  one,  whosoever  he 
may  be,  who  shall  accept  the  promise  in  writing  and  furnish  the 
goods. ^ 

In  this  case  it  will  be  noticed  that  the  writing  was  delivered  by 
the  signer  of  it  for  the  purpose  of  being  given  to  and  acted  upon 
by  the  plaintiffs.  Bnt  this  was  held  to  make  no  difference,  as 
the  note  or  memorandum  in  writing  was  insufficient  to  satisfy  the 
statute.^ 

But  in  Williams  v.  Lake  ^  the  writing,  which  was  unaddressed, 
was  given  to  another  person  than  the  one  for  whom  it  was  intend- 
ed ;  and,  on  the  same  principle  on  which  Williams  v.  Byrnes  *  and 
the  other  cases  above  cited  were  decided,  viz.,  that  it  was  not  a 
note  or  memorandum  of  a  contract,  it  was  held  that  the  signer 
was  not  liable. 

There,  the  defendant  wrote  and  signed  the  following  note : 
"  Sir, —  I  beg  to  inform  you  that  I  shall  see  you  paid  to  the  sum 
of  <£800,  for  the  ensuing  building  which  you  undertake  to  build 
for  T.  &  0.  of  C."     He  intended  the  note  to  be  given  to  one  J., 


1  The  following,  on  the  point  we  are 
considering,  is  the  gist  of  the  judgment : 
"  In  the  present  case,  the  name  of  the 
person  with  whom  the  contract  was  to  be 
made  does  not  appear  in  the  instrument, 
nor  on  any  other  paper  connected  with  it, 
and  capable  of  being  considered  as  com- 
pleting with  it  a  note  or  memorandum  of 
the  transaction.  Whether  this  instrument 
is  to  be  considered  as  evidence  of  the  con- 
tract, or  only  of  a  proposal  which  would 
become  a  contract  upon  the  acceptance  of 
it  by  the  plaintiffs,  the  question  is  still 
the  same,  whether,  without  the  insertion 
of  their  names  in  it,  or  in  some  other  pa- 
per connected  with  it,  there  is  a  sufficient 
note  or  memorandum  in  writing  of  the 
bargJiin  to  satisfy  the  statute  ?  Apart 
from  authority,  and  looking  only  to  the 
words  of  the  enactment,  and  the  mischiefs 
which  it  was  intended  to  prevent,  their 
lordships  think  the  question  must  be  an- 
swered in  the  negative.  The  words  require 
a  written  note  of  a  bargain  or  contract, 
the  statute  clearly  making  no  distinction 
between  these  two  words.  This  language 
cannot  be  satisfied,  unless  the  existence  of 
a  bargain  or  contract  appear  evidenced  in 
writing  ;  and  a  bargain  or  contract  cannot 
.so  appear,  unless  the  parties  to  it  are  speci- 
fied, either  nominally,  or  by  description 
or  reference.  It  is  true  that  the  statute 
does  not  require  the  whole  bargain,  in  all 
its  terms,  to  be  stated.  It  stipulates  only 
for  a  note  or  memorandum  of  it,  signed  by 
the  party  to  be  charged  ;  but  it  does,  in 
effect,  require  that  the  essentials,  i.  e.,  all 
those  things  without  which  it  can  be  no 


bargain  at  all,  shall  be.  Upon  this  prin- 
ciple it  was  that  the  courts  determined, 
under  the  4th  section,  that  the  considera- 
tion of  an  agreement  must  appear  on  the 
face  of  the  memorandum  of  a  guarantee, 
or  be  matter  of  necessary  implication  from 
its  language.  It  was  obviously  the  intent 
of  the  statute  to  prevent,  as  far  a.s  it  could 
conveniently,  the  mischief  of  being  obliged 
to  have  recourse  to  oral  e%idence  in  regard 
to  the  transactions  within  it.  But  it 
would  fail  to  accomplish  its  object  in  a 
most  material  particular,  and  in  one  in 
which  its  requirements  might  always  be 
most  easily  satisfied,  if  it  did  not  impose 
the  necessity  of  stating  the  name  of  the 
seller  as  well  as  of  the  buyer  ;  of  the  party 
by  whom  goods  were  to  be  supplied,  as 
well  as  of  him  to  whom  they  were  to  be 
supplied,  under  the  17th  section  ;  or  of 
the  party  to  be  guaranteed  as  well  as  of 
him  who  is  to  guarantee  under  the  4th. 
Unless  this  be  done,  oral  evidence  must 
be  had  recourse  to,  and  the  risk  incurred, 
that  a  party  may  be  sued  by  one  with 
whom  he  had  never  intended  to  have 
any  transaction,  —  a  matter  of  the  great- 
est importance  under  many  supposable 
circumstances." 

2  Williams  v.  Jordan,  6  Ch.  Div.  517  ; 
Boyce  v.  Green,  Batty  (Irish),  608,  are  to 
the  same  effect.  And  see  Warner  v.  Wil- 
lington,  3  Drew.  523  ;  Potter  v.  Duffield, 
L.  R.  18  Eq.  4  ;  Rossiter  v.  Miller,  5  Ch. 
Div.  648  ;  Catling  v.  King,  5  Ch.  Div. 
660  ;  Dolling  v.  Evans,  36  L.  J.  Ch.  474. 

8  29  L.  j':  Q.  B.  1. 

*  9  Jur.  N.  s.  363. 


PART   IX.]       THE   ESSENTIAL   REQUISITES   OF  THE   MEMORANDUM.      609 

who  had  contracted  to  build  some  houses  for  T.  &  0.,  but  the  con- 
tract having-  fallen  through,  T.  &  0.  afterwards  agreed  with  the 
plaintiff  to  build  for  them,  and  0.  handed  to  him  the  guaranty  of 
the  defendant,  although  he  had  no  authority  from  the  defendant 
to  do  so.  The  court  held,  as  was  held  in  Williams  v.  Byrnes  i  and 
by  Lord  Mansfield  in  Champion  v.  Plummer,^  that  to  constitute 
an  agreement,  the  name  of  each  contracting  party  must  appear 
by  the  writing,  and  that  the  document  did  not  satisfy  the  statute, 
as  it  did  not  contain  the  name  of  the  plaintiff.  So  in  Allen  v. 
Bennet,^  where  the  seller's  agent  wrote,  in  the  purchaser's  book, 
a  note  of  a  sale  by  the  defendants,  signed  by  their  agent,  but  in 
which  the  plaintiff's  name  did  not  appear,  it  was  held,  of  itself, 
to  be  insuflficient  to  satisfy  the  statute.  But  where  the  defendant 
wrote  his  name  in  the  order  book  of  the  plaintiffs,  whicli  had  the 
words  "  Order  Book,"  printed  outside,  and  the  names  of  the  plain- 
tiffs on  the  fly-leaf  at  the  beginning,  it  was  held  that  the  names  of 
both  the  parties  to  the  contract  sufficiently  appeared. 

In  Williams  v.  Byrnes,'*  the  case  was  distinguished  from  that  of 
the  liability  of  a  party  who  advertises  generally  a  reward  for  infor- 
mation to  any  one  not  named  in  the  advertisement,  who  shall  first 
give  the  information  asked  for,  in  which  case  the  liability  is  at 
common  law,  and  not  a  contract  within  the  Statute  of  Frauds. 
On  the  same  principle  the  liability  of  one  advertising  for  tenders 
for  the  furnishing  of  goods  would  seem  to  be  a  common-law  lia- 
bility, and  not  within  the  statute.^  In  Williams  v.  Byrnes,*"  the 
Privy  Council  say,  that  they  do  not  doubt  that  such  a  promise  as 
was  made  in  that  case  will  be  binding  on  the  party  who  has 
signed  the  writing.  The  law  was,  apparently,  so  decided  in  a  nisi 
prius  case  in  England,  by  Gaselee,  J.,'^  where  it  was  hold  that  a 
guaranty  for  goods  addressed  to  one  of  two  partners  may  be  de- 
clared on  as  given  to  both,  if  it  appear  that  the  partner  to  whom 
it  was  addressed  did  not  carry  on  any  separate  business ;  and  that 
a  guaranty  not  addressed  to  any  one  would  enure  to  the  benefit  of 
those  to  whom,  or  for  whose  use,  it  was  delivered.  This  case  is 
only  consistent  with  the  holding  in  Champion  v.  Flummer,'^  Wil- 
liams V.  Byrnes,^  and  the  other  cases  above  cited,  on  tlie  assump- 
tion that  the  guaranty  was  intended  to  be  binding  in  favor  of  any 
one,  unnamed,  who  might  supply  the  goods. 

We  find  this  principle,  in  effect,  alluded  to  in  an  old  case  (a.  d. 
1806)  in  the  Supreme  Court  of  the  United  States,'"  Chief  Justice 

1  9  Jur.  N.  .s.  363.  ^  9  .Tur.  N.  s.  363,  365. 

2  1  B.  &  P.  N.  K.  252.  "^  Walton  v.  Dodson,  3  C.  &  V.  102. 
8  3  Taunt.  169.                                                   *  5  Ksp.  240. 

*  9  Jnr.  N.  s.  363.  »  9  •Iiir.  N.  ts.  363. 

*  See  eases  on  this  point,  cited  infra.  ^^  Lawnisou  v.  Miwon,  3  Cnincli,  492. 


VOL.    II. 


39 


GIO  COMMENTARIES   ON   SALES.  [BOOK   IV. 

Marshall  delivering  the  judgment.  In  this  case  the  guaranty 
was  as  follows :  "  Alexandria,  28th  Nov.,  1800.  Mr.  James 
McPherson  :  Dear  Sir, — We  will  become  your  security  for  130 
barrels  of  corn,  payable  in  twelve  months.  Lawrason  &  Smoot." 
The  plaintiff.  Mason,  furnished  the  corn  to  McPherson,  who  failed 
to  pay  for  it.  Lawrason,  the  surviving  member  of  the  firm  of 
guarantors,  was  then  called  upon  for  payment,  and  refusing  to 
pay,  an  action  against  him,  on  the  guaranty,  was  brought.  He 
demurred  to  the  declaration,  on  the  ground  that  the  guaranty 
did  not  show  a  contract  between  him  and  Mason.  The  Circuit 
Court  gave  judgment  on  the  demurrer  in  favor  of  the  plaintiff, 
which  was  affirmed  by  the  United  States  Supreme  Court. 

Both  the  head-note  of  the  case,  and  the  ground  upon  which  the 
decision  is  placed,  by  Marshall,  C.  J.,  accord  with  the  dictum  of 
the  Privy  Council  in  Williams  v.  Byrnes.^  The  head-note  is :  "A 
letter  from  the  defendants  to  J.  M.  saying  that  they  would  be  his 
security  for  130  barrels  of  corn,  payable  in  twelve  months,  will 
maintain  an  action  of  assumpsit  against  the  defendants  by  any 
person  who,  upon  the  faith  of  the  letter,  shall  have  given  credit  to 
J.  M.  for  the  corn."  And  Marshall,  C.  J.,  says :  "  In  the  present 
case  there  is  an  actual  assumpsit  to  all  the  world,  and  any  person 
who  trusts,  in  consequence  of  that  promise,  has  a  right  of  action^ 

This  thoroughly  accords  with  what  is  said  by  the  Privy  Council 
in  Williams  v.  Byrnes :  ^  "  Their  lordships  do  not  doubt  that  a 
promise  in  writing,  signed  to  pay  any  one  unnamed,  who  shall 
furnish  goods  to  the  writer  or  to  a  third  person,  making  default, 
will  become  a  binding  contract  with  any  one,  whosoever  he  may 
be,  who  shall  accept  the  promise  in  writing  and  furnish  the  goods." 
But,  the  Privy  Council,  considering  the  effect  of  the  Statute  of 
Frauds,  —  no  question  with  reference  to  which  was  raised  or  con- 
sidered in  Lawrason  v.  Mason,  ^  —  add :  "  But  in  sucli  case  the 
requisition  of  the  statute  will  have  been  complied  with."  That  is, 
in  the  case  they  put,  and,  in  effect,  in  the  case  as  stated  in  the 
above  extract  by  Chief  Justice  Marshall,  the  whole  contract  ap- 
pears in  the  writing,  i.  e.,  a  contract  to  pay  any  one  who  may  supply 
the  goods ;  and,  therefore,  the  statute  requiring  written  evidence 
of  the  whole  contract  is  satisfied. 

But,  as  it  was,  both  in  Williams  v.  Byrnes  ^  and  in  Lawrason  v. 
Mason,^  a  contract  not  with  "  all  the  world,"  under  which  "  any 
person  who  trusts,  in  consequence  of  that  promise,  has  a  right  of 
action ; "  but,  as  it  was  in  both  of  these  cases,  and  alike  in  them,  a 
verbal  contract  between  the  plaintiff  and  the  defendant,  to  answer 

1  9  Jur.  N.  s.  363.  *  9  Jur.  N.  s.  363. 

2  Ibid,  at  p.  365.  5  3  Cranch,  492. 
8  3  Cranch,  492. 


PART   IX.]       THE   ESSENTIAL   REQUISITES   OF   THE   MEMORANDUM.      611 

for  the  debt,  default,  or  miscarriage  of  another ;  the  writing,  in 
neither  of  these  cases,  was  a  note  or  memorandum  of  the  whole 
contract,  or  of  all  its  essential  parts,  and  hence  in  neither  of  them 
was  the  statute  satisfied. 

The  former  case  is  an  express  decision  on  the  point,  and  the 
latter,  although  in  it  the  consideration  of  the  statute  was  improp- 
erly ignored,  is  put  upon  the  exceptional  ground  stated  by  the 
Privy  Council,  as  being  a  contract  with  any  one,  and  thus,  on  its 
face,  showing  that  it  was  so  in  fact.  The  error  in  the  case  is  that 
it  was  not  a  contract  with  any  one  unnamed,  but  with  the  plain- 
tiff alone,  and  hence  was  fatally  defective  under  the  Statute  of 
Frauds,  had  that  point  been  taken  in  the  case. 

In  the  Supreme  Court  of  South  Carolina,  however,  there  is  a 
case  decided  under  the  Statute  of  Frauds,  where  the  guaranty 
came  within  the  language  we  have  quoted  from  the  Privy  Council 
in  Williams  v.  Byrnes,^  and  from  the  judgment  of  the  Supreme 
Court  of  the  United  States,  in  Lawrason  v.  Mason.^ 

In  Griffin  v.  Rembert  ^  the  guaranty,  signed  by  the  defendant, 
was  as  follows  :  "  Sumter,  S.  C,  Oct.  15,  1866.  Mr.  Francis  E. 
Joye, —  Dear  Sir :  As  you  request,  we  are  willing  to  help  you  in 
the  purchase  of  a  stock  of  goods.  We  will,  therefore,  guarantee 
the  payment  of  any  bills  which  you  may  make,  under  this  letter  of 
credit,  in  Baltimore,  not  exceeding  in  the  whole  amount  81500." 
In  an  action  against  the  guarantors  by  a  party  who  supplied  a 
portion  of  the  goods  under  the  guaranty,  the  case  was  properly 
decided,  in  accordance  with  the  dictum  of  the  Privy  Council  in 
Williams  v.  Byrnes,^  and  agreeable  to  the  language  of  Marshall, 
C.  J.,  in  Lawrason  v.  Mason,^  as  a  contract  with  any  one  unnamed 
who  might  supply  the  goods.  But,  while  the  decision  itself  is 
right,  the  ground  of  the  decision  is  entirely  untenable.  It  helps 
still  further  to  show  the  unsoundness  of  those  cases  which,  con- 
founding mutuality  with  consideration,  profess  to  hold  that  a  note 
or  memorandum  in  writing,  which  omits  one-half  of  the  contract, 
is  what  the  statute  requires,  viz.,  a  note  or  memorandum  of  the 
contract,  bargain,  or  agreement,  ^.  e.,  of  the  whole  contract,  bar- 
gain, or  agreement. 

The  court,  in  Griffin  v.  Rembert,^  acting  on  the  fallacy  that  tho 
"  consideration"  need  not  appear  l)y  the  writing,  go  ono  stfp  fur- 
ther, and  say  that,  in  contracts  under  tlie  statute  it  is  not  neces- 
sary that  the  parties  to  the  contract  should  be  shown  l)y  the 
writing;  that  "  the  statute  is  fulfilled  if  th(!  party  against  whom 
the  performance  is  sought  has  signed  the  letter." 

1  9  Jur.  N.  8.  at  p.  365.  *  9  Jur.  N.  h.  nt  p.  8(15. 

2  3  Cranch,  at  t>.  496.  ^  3  Craiich,  at  p.  496. 

8  2  S.  C.  410.  '2  8.  C.  at  p.  414,  d  acq. 


612  COMMENTARIES   ON   SALES.  [BOOK   IV. 

Their  language,  in  full,  is:  "The  argument  used  here  to  con- 
vince the  court  that  the  guaranty  is  void  because  '  the  plaintiffs 
are  not  named  in  the  letter,'  is  of  the  same  character  as  that  which 
enforced  the  necessity/  of  the  statement  of  the  consideration  in  the 
instrument  itself.  It  proceeded  upon  the  ground  that  the  word 
'agreement,'  as  used  in  the  statute,  was  employed  in  a  technical 
sense ;  that  the  consideration  being  an  essential  and  a  vital  element 
in  an  agreement,  and  as  the  statute  requires  the  latter  to  he  in 
writing,  all  that  necessarily  form  component  parts  of  it  must  he 
stated.  [This  would  seem  to  be  quite  self-evident.]  So  here  it  is 
contended,  that  an  agreement  implies  the  assent  of  two  or  more 
minds,  and,  therefore,  the  contracting  parties  should  be  named. 
It  is  not  necessary  to  follow  the  argument  by  which  the  courts  of 
this,  and  some  other  of  the  States  of  the  Union,  have  felt  them- 
selves impelled  to  a  contrary  conclusion.  It  may  be  enough  to  say, 
that  the  statute  merely  requires  that  a  note  or  memorandum  of  the 
agreement  shall  he  in  writing  [the  italics  are  ours],  and  signed 
by  the  party  to  be  charged  therewith,  or  some  other  person  by 
him  lawfully  authorized.  Following  the  analogy  of  the  decision 
made  on  the  other  question  arising  under  the  word  '  agreement^  we 
hold  that  the  statute  is  fulfilled  if  the  party  against  whom  the  per- 
formance is  sought  has  signed  the  letter.''^ 

Thus,  they  first  eliminate  one  entire  side  of  the  contract,  bar- 
gain, or  agreement  (the  terms  are  simply  interchangeable)  ;  then, 
on  analogy,  they  do  away  with  the  necessity  of  naming  the  parties 
in  the  writing ;  all  that  is  then  left  are  the  one  side  of  the  con- 
tract, and  one  signature.  If,  on  principle,  they  can  eliminate  one 
side  of  the  contract,  and  do  away  with  the  necessity  of  showing, 
by  the  writing,  who  even  the  parties  to  the  so-called  "contract," 
"bargain,"  or  "agreement"  are;  as  logically,  and  consistently, 
and  as  analogously,  they  may  sweep  away  the  otlier  side  of  the 
subject  of  the  "contract,"  as  well ;  and,  tlien,  all  that  is  left  is  the 
blank  signature  of  the  party  to  be  charged,  which,  literally,  the 
South  Carolina  court  say  is  sufficient :  "  We  hold  that  the  statute 
is  fulfilled  if  the  party  against  tvhom  the  performance  is  sought  has 
signed  the  letter. ^^  Simply  that !  But  what  "letter"  there  would 
be  to  sign,  if  the  signature  alone  of  "the  party  against  whom  the 
performance  is  sought "  satisfies  the  statute,  is  not  clear. 

Of  course,  they  don't  mean  that.  But  they  mean  it  as  much  as 
Tindal,  C.  J.,  in  Laythoarp  v.  Bryant,^  meant  that  a  memorandum 
in  writing,  by  which  the  names  of  the  parties  to  the  contract  did 
not  appear,  satisfies  the  statute,  when,  in  that  case,  he  says:  "The 
word  "agreement,"  therefore,  is  satisfied,  if  the  writing  states  the 

1  2  Bing.  N.  C.  735,  74i. 


PART   IX.]       THE   ESSENTIAL   REQUISITES   OP   THE   MEMORANDUM.      613 

subject-matter  of  the  contract,  the  consideration,  and  is  signed  bv 
the  party  to  be  charged."  What  the  court  was  dealing  with  there 
was  the  question,  simply,  whether,  in  addition  to  the  subject-mat- 
ter of  the  conti-act,  the  consideration,  the  names  of  the  parties 
contracting,  and  the  signature  of  the  party  Avhom  it  was  sought 
to  charge,  it  was  also  necessary  that  the  mutuality  should  be 
shown  by  the  writing,  by  both  of  the  parties  to  it  signing  it ;  and 
they  held  that  it  was  not,  that  the  statute  did  not  require  that. 
But  all  the  other  questions  had  been  long  before  decided  by  such 
cases  as  Allen  v.  Bennet,i  and  Champion  v.  Plummer ;  ^  in  the  lat- 
ter of  which  Lord  Mansfield,  on  the  point  we  are  considering,  said : 
"How  can  that  be  said  to  be  a  contract,  or  memorandum  of  a  con- 
tract, which  does  not  state  who  are  the  contracting  parties?" 

And,  yet,  it  is  the  language  of  Tindal,  C.  J.,  in  Laythoarp  v. 
Bryant,^  which  we  have  quoted  above,  upon  which  the  Supreme 
Court  of  South  Carolina,  in  Griffin  v.  Rembert,*  largely  rely,  in 
holding  that  the  names  of  the  contracting  parties- are  not  required 
under  the  statute  to  be  shown  by  the  writing. 

For  that  position  they  quote  an  old  American  work,  by  Pitman, 
on  Principal  and  Surety,*  where  the  language  we  have  quoted  is 
stated  in  the  text :  "  Per  Tindal,  C.  J.,  in  Laythoarp  v.  Bryant,  2 
Bing.  N.  C.  735,"  being  cited  as  the  authority. 

But  as,  on  the  authority  on  which  the  South  Carolina  Court 
rely,  the  consideration  is  shown  to  be  essential  in  the  writing;  if 
they  accept  the  authority,  as  it  holds  that  the  consideration  must 
appear,  on  their  own  doctrine  of  analogy  equally  so  must  the 
names  of  the  contracting  parties,  or  else  the  essential  element  of 
who  the  parties  to  the  contract  arc,  is  not,  of  course,  evidenced  by 
the  writing ;  and,  therefore,  the  requirements  of  the  statute,  of  a 
note  or  memorandum  in  writing  of  the  contract,  bargain,  or  agree- 
ment, i.  g.,  of  all  the  essential  parts  of  it,  are  not  satisfied. 

But  in  Laythoarp  v.  Bryant,^  the  writing  signed  by  the  defend- 
ant showed  that  the  sale  was  at  auction,  by  Mr.  Thomas  Ross, 
"  by  order  of  Mr.  W.  Laythoarp,  the  proprietory^  and  it  was  ex- 
pressly held  in  Laythoarp  v.  Bryant"^  that  the  names  of  the  parties 
to  the  contract  must  appear  by  the  writiny  ;  and  that,  in  that  case, 
they  did  sufficiently  appear. 

The  case  came  before  the  court  on  two  objections ;  first,  that 
"the  contract,"  when  inspected,  did  not  contain  the  name  of  one 
of  the  parties;  second,  that  "the  contract"  had  not  been  signed 
by  the  vendor,  but  by  the  vendee  only.     It  was  in  discussing  the 

1  3  Taunt.  169.  '^  V.  7r,. 

2  1  B.  &  P.  N.  R.  254.  "  2  I'-ing.  N.  C  73r.. 

8  2  Bins.  N.  C.  at  p.  744.  ''  2  Bing.  N.  C.  735,  742. 

«  2  S.  C.  410,  415. 


614  COMMENTARIES   ON   SALES.  [BOOK   IV. 

latter  of  these  two  points,  that  Tiudal,  C.  J.,  used  the  lanj^uage 
quoted  by  Pitman,  and  which  is  requoted  by  the  South  Carolina 
Court;  and  by  which,  and  by  some  other  authorities,  they  were 
misled  into  unsoundly  holding  the  general  doctrine  that  in  the 
writing  under  the  statute  it  is  not  necessary  that  it  should  appear 
who  both  of  the  parties  to  the  contract  are. 

That  matter  1  was  summarily  dealt  with  by  Tindal,  C.  J.,  in 
disposing  of  the  first  point,  where  he  says :  "  I  admit  that  an 
agreement  is  not  perfect  unless  in  the  body  of  it,  or  by  necessary 
inference,  it  contain  the  names  of  the  two  contracting  parties,  the 
subject-matter  of  the  contract,  the  consideration,  and  the  promise. 
Looking  at  tliis  contract,  as  it  may  be  collected  from  the  particu- 
lar of  sale,  it  appears  to  be  an  agreement  by  which  Ross  sells 
property  on  behalf  of  Laythoarp.  When,  in  the  outset,  it  says 
that  the  property  will  be  sold,  subject  to  conditions,  we  are  re- 
ferred to  the  conditions  in  the  same  paper ;  and  there  we  see  that 
Ross  is  an  auctioneer  who  sells  for  Laythoarp.  That  gets  rid  of 
the  objection,  therefore,  that  Laythoarp's  name  is  not  contained 
in  the  contract,"  and  deprives  Pitman  on  Principal  and  Surety, 
p.  75,  and  '-'■Per  Tindal,  C.  J.,  in  Laythoarp  v.  Bryant,  2  Bing.  N. 
C.  735,"  of  any  weight  as  authority  for  the  ostensible  holding  of 
the  Supreme  Court  of  South  Carolina,  in  Griffin  v.  Rembert.^ 

Parsons  on  Contracts ^  and  Kent's  Commentaries*  are  also  cited 
by  the  court  to  sustain  their  position  that  in  agreements,  gener- 
ally, the  names  of  the  contracting  parties  do  not,  under  the  stat- 
ute, have  to  be  shown  by  the  writing.  But  the  language  quoted 
by  the  court  from  both  of  these  leading  American  writers  is  simply 
to  the  effect,  as  in  Laythoarp  v.  Bryant,^  that  both  of  the  parties 
need  not  sign  the  contract,  —  manifestly  a  very  different  thing 
from  the  writing,  signed  by  the  party  whom  it  is  sought  to  charge, 
not  showing  with  whom  he  has  contracted.  Kent  refers  to  the 
statute  very  briefly,  but  he  does  state  that  "  unless  the  essential 
terms  of  the  sale  can  be  ascertained  from  the  writing  itself,  or  by 
a  reference  contained  in  it  to  something  else,  the  writing  is  not 
a  compliance  with  the  statute  ;  "^  which  "  essential  terms"  would 
clearly  include  what  is  to  be  given  for  the  goods,  the  considera- 
tion ;  and,  according  to  the  Soutli  Carolina  Court,  "  by  analogy," 
that  would  imply  that  the  names  of  the  contracting  parties  must 
also  be  shown  by  the  writing. 

But  Professor  Parsons,  who  deals  more  fully  with  the  statute, 
expressly  says,  that  the  writing  "  must  contain  the  names  of  the 

1  At  p.  742.  4  2  Kent's  Com.  510. 

2  2  S.  C.  410,  414,  et  seq.  »  2  Bing.  N.  C.  735. 
«  2  Pars,  on  Con.  p.  9.                                     «  2  Kent's  Com.  511. 


PART   IX.]       THE   ESSENTIAL   REQUISITES   OP   THE   MEMORANDUM.      615 

parties,""  ^  the  italics  being  his  own ;  and  Champion  v.  Pluuimer,^ 
and  other  authorities,  English  and  American,  are  cited  for  this 
clear  and  unquestionably  sound  position.  So,  these  authorities  do 
not  sustain  the  unsound  extra-judicial  holding  of  the  South  Caro- 
lina Supreme  Court. 

Fell  on  Guaranty  ^  is  also  cited.  And  although  the  language  of 
that  author  is,  as  quoted,  sufficient  to  sustain  the  7-atio  decidendi 
of  what  we  have  already  intimated,  is,  in  accordance  with  the  dic- 
tum of  the  Privy  Council  in  Williams  v.  Byrnes,*  the  thoroughly 
well  decided  case  of  Griffin  v.  Rembert^  (although  not  sound  on 
the  ground  on  which  it  is  ostensibly  decided)  ;  yet  that  author  is 
as  far  as  the  others  from  sustaining  the  doctrine  of  the  South 
Carolina  Court,  that,  generally,  under  the  Statute  of  Frauds,  the 
names  of  both  the  contracting  parties  need  not  appear  by  the 
writing.  On  the  contrary,  Mr.  Fell  expressly  says,  that,  "  Gener- 
ally speaking,  it  must  appear  upon  the  face  of  an  agreement,  who 
the  contracting  parties  are."  ^  But,  on  p.  67,  that  writer  does, 
as  he  is  quoted,  say,  "  But  it  seems  very  questionable,  whether  a 
note  of  guaranty  need  show,  upon  the  face  of  it,  all  the  contract- 
ing parties.  Supposing  a  guaranty  given  in  the  following  form : 
'  I  promise  to  guaranty  the  payment  of  goods  to  the  amount  of 
.£100  furnished  to  A.  B.  (Signed)  B.  C  This  may  be  a  very 
useful  form  of  guaranty,  where  a  person  of  known  reputation 
wishes  to  gain  credit  for  another,  leaving  to  him  the  choice  of 
such  person  to  deal  with  as  he  might  find  most  to  his  advan- 
tage." 

While  this  is  in  strict  accord  with  the  dictum  of  the  Privy 
Council,  when  confined  to  the  case  of  a  guaranty  given  to  one  to 
be  used  with  unnamed  parties,  the  authorities  cited  for  it,  Stadt  v. 
Lill,"  and  Coleman  v.  Upcot,^  do  not  touch  the  point.  The  former 
case  holds  that  the  writing  was  good  under  the  fourth  section ;  the 
parties  to  the  contract,  its  subject-matter  and  consideration,  being 
stated,  and  the  writing  being  signed  by  the  party  to  be  charged. 
The  latter  case  holds  that  the  aggregatio  mentium  can  be  shown 
by  the  verbal  assent  to  the  contract,  of  the  party  who  is  not  tho 
party  sought  to  be  charged;  all  the  essentials  of  the  contract  be- 
ing evidenced  by  the  writing  signed  by  the  party  to  be  charged. 

But,  in  a  note^  in  Fell  on  Guaranty,  the  language  is  in  very  di- 
rect contradiction  to  that  of  the  text,  thus  :  "  Tho  written  nicnior- 
andum  must  contain  the  names  of  both  the  contracting  parties.     It 

1  3  Pars,  on  Con.  13,  n.  v.  ^  At  p.  fi6. 

2  5  Esp.  240,  4  B.  &  P.  253.  ^  9  I'-'i^t,  «1S- 

8  Page  67  ^  •'>  Vin.  Ab.  527. 

*  9  Jur.  N.  s.  at  p.  365.  »  To  p.  07  ;    A.,  npiKndix,    402  ;    3d 

6  2  S.  C.  410.  Am.  ed. 


616  COMMENTARIES   ON   SALES.  [BOOK   IV. 

is  not  sufficient  that  a  guaranty  contain  the  name  of  the  party 
who  is  answerable  for  the  debt ;  it  must  contain  as  well  the  name 
of  him  whose  debt  is  to  be  answered  for,"  ^ 

The  case  of  Union  Bank  v.  Coster's  Executors,^  in  the  New 
York  Court  of  Appeals,  is  another  case  where  the  decision  accords 
with  the  dictmn  of  the  Privy  Council  in  Williams  v.  Byrnes.^  In 
that  case  H.  &  C.  gave  K.  <fe  D.  a  letter,  unaddressed,  to  be  used 
as  the  holders  might  find  necessary,  as  follows  :  "  New  York,  May 
29,  1841.  Sir :  We  hereby  agree  to  accept  and  pay  at  maturity 
any  draft  or  drafts  on  us  at  sixty  days'  sight,  issued  by  K.  &  D. 
of  your  city,  to  the  extent  of  -^25,000,  and  negotiated  through  your 
bank.  (Signed)  H.  &  C."  At  the  foot  of  the  letter  of  credit  was 
a  guaranty  executed  at  the  same  time  by  the  defendant's  testator, 
as  follows :  "  1  hereby  guarantee  the  due  acceptance  and  payment 
of  any  draft  issued  in  pursuance  of  the  above  credit.  (Signed) 
John  G.  Coster." 

On  the  faith  of  this  letter  of  credit  and  guaranty,  the  plaintiffs 
purchased  from  K.  &,  D.  drafts  for  89000,  and,  subsequently,  a 
further  draft  for  $4000,  on  H.  &  C,  at  sixty  days'  sight.  The 
former  were  duly  accepted  and  paid,  but  the  latter  was  refused 
acceptance.  Independent  of  these  drafts,  another  bank  had  pur- 
chased a  draft  for  810,000  under  the  same  letter  and  guaranty. 

In  an  action  against  the  executors  of  the  guarantor,  a  verdict 
was  entered  for  the  plaintiffs,  which  was  sustained  by  the  New 
York  Superior  Court.*  On  appeal  the  judgment  was  sustained. 
One  of  the  grounds  upon  which  the  appellants  relied  was,  tliat  the 
guaranty  was  void  under  the  Statute  of  Frauds,  because  it  did  not 
contain  any  name  or  description  of  the  person  or  party  to  whom 
the  promise  to  answer  for  the  debt  or  default  of  another  was 
made.^  But  the  Court  of  Appeal  held  that,  tlie  guaranty  being 
general,  a  contract  arose  between  the  guarantor  and  any  party 
or  parties  acting  under  the  guaranty.^ 

1  This,  which  seems  to  be  an  American  350  ;    Parker  v.  Wilson,  15  AVend.  343, 

note,  is  a  little  mixed  ;   but  as  the  con-  '6  &  7  ;  Manrow  v.  Dunham,  3  Hill,  584  ; 

tracting  parties  are  the  guarantor  and  the  Parker  v.  Bradley,  2  Hill,  584  ;  Hunt  v. 

guarantee,   and  as  there  is  cited  in   the  Brown,  5  Hill,  145  ;  Rogers  v.  Kneeland, 

note,  among  other  cases,  Williams  t).  Lake,  13   Wend.   114;    Xewcomb   v.    Clark,    1 

1  L.  T.  N.  s.   57,  stated   by  us  supra,  it  Denio,  226,  were  cited, 
manifestly  means  that  which  in  the  first  ^  Pratt,  J.,  in  delivering  the  judgment 

part  of  the  sentence  it  says,  namely,  that  of  the  court,   said :    "  But  these  general 

"the  written  memorandum  {i.  e.,  of  the  letters  of  credit  may  be  subdivided  into 

guaranty  named  and  referred  to  on  page  two  kinds,  those  that  contemplate  a  single 

67)  must  contain  the  names  of  both  the  transaction,  and   those  that  contemplate 

contracting  parties."  an  open  and  continued  credit,  embracing 

^  3  Comst.  203.  several   transactions.     In    the  latter  case 

*  9  .Jnr.  N.  s.  365.  they  are  not  generally  confined  to  transac- 

*  Union  Bank  v.  Coster's  Executors,  tions  with  a  single  individual,  but  if  the 
1  Sandf.  562.  nature  of  the  business  which  the  letter  of 

^  For  this,  Davis  v.  Shields,  26  Wend,      credit  was  intended  to  facilitate  requires 


PART  IX.]      THE   ESSENTIAL  REQUISITES   OP   THE   MEMORANDUM.      617 

In  Birckhead  v.  Brown,i  whore  a  letter  of  credit  was  addressed 
to  specified  parties,  and  advances  were  made  on  it  by  other  par- 
ties, the  New  York  Supreme  Court,  in  holding  that  an  action  by 
these  would  not  lie  for  want  of  privity  of  contract,  thus  well  stated 
the  general  law  applicable  to  the  question  we  are  considering  : 
"Letters  of  credit  usually  contain  a  request  that  some  one  will  ad- 
vance money  or  sell  goods  to  a  third  person,  and  an  undertaking 
on  the  part  of  the  writer  that  the  debt  which  may  be  contracted 
by  the  third  person  in  pursuance  of  the  request  shall  be  duly  paid. 
These  letters  have  been  divided  into  two  classes,  general  and 
special.  They  are  general  when  addressed  to  any  person  and  all 
persons,  without  naming  any  one  in  particular.  They  are  special 
when  addressed  to  a  particular  individual  or  firm  by  name.  When 
the  letter  is  addressed  to  all  persons,  it  is  in  effect  a  request  made 
to  each  and  every  one  of  them,  and  any  individual  may  accept  and 
act  upon  the  proposition  contained  in  it,  and  on  his  doing  so,  that 
which  was  before  indefinite  and  at  large  becomes  definite  and 
fixed  ;  a  contract  immediately  springs  up  between  the  person 
making  the  advance  and  the  writer  of  the  letter,  and  it  is  thence- 
forward the  same  thing  in  legal  effect  as  though  the  name  of  the 
former  had  been  inserted  in  tlie  letter  at  the  beginning.  When 
the  letter  is  special,  or  in  other  words,  addressed  to  a  particular 
individual,  he  alone  has  the  right  to  act  upon  and  acquire  rights 
under  it.  If  any  one  else  attempts  to  accept  and  act  upon  the 
proposition  contained  in  the  letter,  he  comes  in  as  a  mere  volun- 
teer, and  he  cannot  by  thus  thrusting  himself  forward  create  any 
legal  obligation  on  the  part  of  the  writer.  There  has  been  no 
communication,  and  is  no  privity  of  contract  between  them."  ^ 

The  conclusions  we  reach  on  the  general  subject  we  have  been 
considering,  are, — 

it,  different  individuals  are  authorized  to  to  guaranty  the   payment,  notwithstand- 

make  advances  upon  it,  and  it  then  becomes  ing  it   is   addressed   to   A.    H.  ?     In   the 

a  several  contract  with  each  individual  to  commercial  world,  as  far  as  I  know,  no 

the  amount  advanced  by  him."  doubt  has  as  yet  ever  been  entertained  on 

^  5  Hill,  634,  642.  this  subject  ;  and  yet  transactions  of  this 

2  So  in   Russell  v.   Wiggin,   2   Story,  sort  are  of  every  day's  occurn-iicc,  espe- 

213,    233,    Story,   J.,    says:    "Take   the  cially  where  the  person  by  whom  the  lul- 

case  of  a  common  letter  of  guaranty,  where  vance   is   to    be    made,    is    umcrtiiin    or 

the  guarantor  says  in  general  terms  in  a  unknown.     The  case  of  Adams  i>.  .lones, 

paper  addressed   to  A.  R,  the  party  for  12  Pet.  207,  213,  is  in  ].oiiit  to  show  that 

whose  benefit  it  is  given,  'I  hereby  guar-  such  a  guaranty,   in  such  gcncnil  terms, 

antee  to  any  person,  advancing  money  or  will  bind  the  guarantor  in  favor  of  any  per- 

selling   goods   to    A.    B.,    not    exceeding  son   who   shall   trust   the   jiarty   u|M)n  the 

£100,  the  payment  thereof  at  the  expira-  fiiith  and  credit  of  the  giinniiily.  '     And 

tion  of  the  credit  which  shall  be  given  see    Watson's     Kxors.     i;.     Mrl.iuvn,    19 

therefor.'     Can  there  be  a  doubt  that  any  Wend.    557;    26    W.-nd.    4'2.'i  ;    Moyr«'    v. 

person   making   the   advances   or   selling  Edwards,  4  Wheat.  1 11  ;   Unidlcy  r.  Cary, 

the  goods  upon  the  faith  of  the  letter,  is  8    On-.-nlf.    234  ;    Caniegio   v.    Morrison, 

entitled  to  treat  the  paper  as  containing  2  Mete.   381. 

a  direct  and  immediate  promise  to  himself  On  the  analogous  fpiestion  nt  coTiinion 


618  COMMENTARIES   ON   SALES.  [BOOK  IV. 

1.  That  in  all  such  cases  as  "Williams  v.  Byrnes/  Lawrason  v. 
Mason,'-^  Williams  v.  Lake,^  Williams  v.  Jordan,^  and  Boyce  v. 
Green,^  where  the  guaranty  is  to  a  specific  person,  as  the  words  of 
the  statute  require  a  note  in  writing  of  the  bargain  or  contract, 
the  language  cannot  be  satisfied  unless  the  existence  of  the  bar- 
gain or  contract  appear  evidenced  in  writing,  and  a  bargain  or 
contract  cannot  so  appear,  unless  the  parties  to  it  are  specified, 
either  nominally,  or  by  description  or  reference.     But, — 

2.  In  such  cases  as  Griffin  v.  Rembert,^  and  Union  Bank  v. 
Coster's  Executors,'  where  there  is  a  promise  in  writing,  signed  by 
the  party  to  be  charged,  to  pay  any  one  unnamed  who  shall  fur- 
nish goods  to  the  writer,  or  to  a  third  person  making  default,  the 
promise  in  writing  will  become  a  binding  contract  with  any  one, 
whosoever  he  may  be,  who  shall  accept  the  promise  in  writing, 
and  furnish  the  goods  ;  the  requisition  of  the  statute  beiug  there 
complied  with,  as  the  note  in  writing  is  a  note  or  memorandum  of 
the  contract,  outside  of  the  question  of  mutuality,  which  latter 
docs  not  have  to  be  evidenced  by  the  writing. 

But  it  is  not  absolutely  essential  that  the  actual  names  of  the 
parties  to  the  contract  should  appear  by  the  writing.  If  the  writ- 
ing contain  a  sufficient  description  of  the  parties,  that  has  been 
held  to  be  sufficient.  In  Hood  v.  Lord  Barrington,^  a  sale  of 
property  described  as  belonging  to  the  late  Admiral  Ferguson,  ex- 
pressed to  be  "  by  direction  of  the  executors,"  was  held  a  sufficient 
description  of  the  vendors,  without  naming  who  the  executors 
were.  So,  in  Sale  v.  Lambert,^  where  the  memorandum  showed 
that  the  sale  was  "by  direction  of  the  proprietor,"  but  did  not 
contain  the  name  or  any  other  description  of  the  vendor,  it  was 
held  that  the  description  of  the  vendor  was  sufficient.  And  in 
Commins  v.  Scott,^*^  where  the  particulars  annexed  to  the  mem- 
orandum of  the  sale  showed  that  the  vendors  were  a  company  in 
possession  of  the  premises,  it  was  held  that  this  was  a  sufticient 
description  of  them.^^     In  Rossiter  v.  Miller,^^  too,  it  was  held  that 

law  referred  to  by  the  Privy  Council  in  ^  Battv  (Ir.).  608. 

Williams  v.  Bynies,  9  Jur.  N.  s.  363,  365,  «  2  S.  Car.  410. 

as  to  the  liability  of  any  one  who  adver-  "  3  Conist.  (N.  Y.)  203. 

tises  generally  a  reward  for  information  ^  L.  R.  6  Eq.  218. 

to  any  person  not  named  in  the  advertise-  ^  L.  R.  18  Eq.  1. 

ment,  who  shall  first  give  the  information  ^^  L.  R.  20  Eq.  11. 

asked  for,   see    Williams   v.   Carwardine,  "  And   see    Morris  v.   Wilson,   5  Jur. 

5  C.  &  P.  566  ;  Lancaster  v.  Walsh,  4  >L  n.  s.  168  ;    Trueman  c.   I>oder,  11  A.  & 

6  W.  16  ;  City  Bank  v.  Bangs,  2  Ed-  E.  589  ;  Newell  v.  Radfonl,  L.  R.  3  C.  P. 
wards  (N.  Y.),'Ch.  95  ;  Fallick  v.  Bar-  52  ;  Calder  v.  Dobell,  L.  R.  6  C.  P.  486  ; 
ber,  1  M.  &  Sel.  108.  Thomas  i'.  Brown,  1  Q.  B.  Div.  714  ;  Beer 

1  9  Jur.  N.  s.  363.  v.  London  &  Paris  Hotel  Co.,  L.  R.  20  Eq. 

2  3  Cranch,  492.  412. 

8  29  L.  J.  Q.  B.  1.  "  5  Ch.  Div.  648  ;  3  App.  Cas.  1124. 

*  6  Ch.  Div.  517. 


PART   IX.]      THE   ESSENTIAL  REQUISITES   OF   THE   MEMORANDUM.      619 


the  term  "proprietors"  was  a  sufficient  description  from  which  to 
identify  the  vendors.  And  in  Catling  v.  King,i  where  the  vendor 
was  described  as  "a  trustee  selling  under  a  trust  for  sale,"  the  de- 
scription of  the  vendor  was  held  sufficient.  But,  in  Potter  v. 
Duffield,2  it  was  held  that  the  term  "  vendor  "  alone  was  insuffi- 
cient, as  it  contains  no  description  of  who  the  vendor  is.^ 

cases  there  is  no  such  statement,  and  I 
apprehend  that  in  none  of  those  cases 
would  the  note  satisfy  the  requirements  of 
the  statute  of  frauds.  But  if  J,  being 
really  an  agent,  enter  into  a  contract  to 
sell  Blackacre,  of  whicii  I  am  not  propri- 
etor, or  to  sell  the  house  Xo.  1  Portland 
Place,  on  behalf  of  the  owner  of  that 
house,  there,  I  apprehend,  is  a  statement 
of  matter  of  fact,  as  to  which  there  can  be 
perfect  certainty,  and  none  of  the  dangers 
"struck  at  by  the  statute  of  frauds  can 
arise  ;  and  I  should  be  surprised  if  any 
authority  could  be  found,  and  certain  none 
has  been  produced,  to  say  that  a  contract 
under  those  circumstances  would  not  bo 
valid." 

The  same  question  was  dealt  witli  in 
the  English  Court  of  Appeal  in  Donnison 
V.  The  People's  Cafe  Co.,  45  L.  T.  n.  s. 
187,  where,  reversing  the  judgment  of 
Malins,  V.  C,  the  court  held"  that  in  that 
case,  neither  the  name  nor  sufficient  de- 
scription of  the  vendor  was  given  to  sat- 
isfy the  4th  section  of  the  statute.  The 
sale  of  the  property  was  by  auction,  the 
auctioneer  only  saying:  "We  are  in- 
structed to  dispose  of  propei-ty  ;  our  in- 
structions are  to  sell."  Jessel,  M.  1!.,  on 
this  point  said  :  "  That  does  not  show  that 
the  person  who  is  selling  is  the  owner  or 
proprietor,  which  is  the  same  thing.  He 
may  be  a  person  having  a  power  to  dis- 
pose of  the  property,  or  wliat  is  sometimes 
called  a  power  simply  collateral,  without 
any  interest  in  the  propeity.  The  most 
familiar  case  is  the  case  of  a  trustee  with  a 
power  of  sale.  He  may  be  a  mortgagee  or 
any  person  having  any  power;  in  I'act,  ho 
may  l)e  a  commissioner  under  an  inclosuro 
act,  having  power  to  sell  the  lands  for 
2)ayment  of  the  waste.  He  docs  not  show 
by  anything  who  he  is  or  what  lie  is  ; 
therefore  there  is  no  description  given  nt 
all.  The  mere  word  '  vendor,'  will  not 
do,  because  that  is  the  somebody  wlio  .sells. 
When  you  come  to  '  jirojirietor,"  tlierc  is 
something  to  sliow  it,  and  1  do  not  know 
why  '  proprietor '  in  many  cases  is  not  ns 

good  and  l)etter  than  the  nan f  tlx-  i>er- 

son.     An  auctioneer  might  say  :   '  We  sell 


1  5  Ch.  Div.  660. 

2  L.  R.  18  Eq.  4. 

3  In  Catling  v.  King,  5  Ch.  Div.  660, 
665,  where  it  was  held  that  "a  trustee 
selling  under  a  trust  for  sale  "  was  a  suffi- 
cient description,  Mellish,  L.  J.,  said : 
' '  The  statute  only  requires  that  there 
should  be  a  note  or  memorandum  of  a 
contract.  Then  the  cases  no  doubt  show 
(what,  even  if  not  established  by  author- 
ity, would  have  been  clear  enough)  that 
you  must  be  able  to  discover  from  the 
written  document  who  the  vendor  is.  If 
he  is  left  quite  at  large  as  '  vendor,'  or  as 
'my  client,'  or  something  of  that  kind, 
that  is  too  vague.  In  determining  whether 
the  description  in  the  present  case  is  suffi- 
cient or  not,  the  only  thing  to  look  at  is 
whether  it  is  within  the  meaning  of  the 
statute ;  whether  it  is  so  vague  that  persons 
who  have  not  contracted  could  by  per- 
jury be  made  liable  on  the  contract.  I 
cannot  see  that  such  a  description  as  this 
exposes  parties  to  that  risk  any  more  than 
if  the  name  was  mentioned  and  the  ques- 
tion was  raised  which  of  the  persons  bear- 
ing that  name  was  intended.  It  appears 
to  me  that  if  a  man  is  described  as  a  trus- 
tee for  sale  of  certain  property,  he  must  be 
so  by  virtue  of  some  written  document, 
and  the  production  of  the  document  mak- 
ing him  a  trustee  for  sale  of  the  property 
in  question,  identifies  him."  The  same 
principles  are  laid  down  by  Lord  Cairns  in 
the  House  of  Lords,  in  Rossiter  v.  Miller, 
.3  App.  Cas.  1124,  1140,  thus:  "As  to 
the  use  of  the  term  '  proprietors,'  I  own  I 
was  somewhat  surprised  to  hear  that  ([ues- 
tion  argued,  for  I  am  sure  your  lordships 
have  fre<iuently  seen  conditions  of  sale,  not 
merely  by  auction,  but  by  private  con- 
tract, in  which  it  is  stated  that  the  sale  is 
made  sometimes  by  the  owner  and  some- 
times by  the  moitgagees,  and  a  fonn  of 
contract  is  annexed  in  which  an  agent 
signs  for  the  vc^ndors,  and  no  other  specifi- 
cation upon  the  vendor's  part  is  inserted, 
and  I  never  heard  up  to  this  time  that  a 
contract  under  those  circumstances  was  in- 
valid. In  point  of  fact,  the  (juestion  is,  is 
there  that  certainty  which  is  described  in 
the  legal  maxim  id  cerium  est  qtind  cerium 
rcddi  potest  ?  If  I  enter  into  a  contract  on 
behalf  of  my  client,  on  behalf  of  my  prin- 
cipal, on  behalf  of  my  friend,  on  behalf  of 
those  whom  it  may  concern,  —  in  all  those 


on  behalf  of  .John  Smith.'  That  is  not 
such  a  good  description  as,  '  Wii  sell  on 
behalf  of  the  owner  of  Mlaekaere,  Nituiite 
so  and  so.'  In  .some  cases  the  des<'ription 
is  belter  than  tlie  name.      Would  any  one 


620  COMMENTARIES   ON    SALES.  [BOOK   IV. 

Kay,  J.,  in  Jarrett  v.  Hunter,^  held,  on  the  principles  established 
in  Rossiter  v.  Miller,^  Sale  v.  Lambert,^  and  Potter  v.  Duffield,*  that 
if  the  vendor  is  described  in  the  contract  as  proprietor,  owner, 
mortgagee,  or  the  like,  the  description  is  sufficient,  although  he  is 
not  named ;  but  if  he  is  described  as  vendor,  or  client,  or  friend, 
of  a  named  agent,  that  is  not  sufficient;  the  reason  being  that  the 
former  description  is  a  statement  of  matter  of  fact,  as  to  which 
there  can  be  perfect  certainty,  and  none  of  the  dangers  struck  at 
by  the  Statute  of  Frauds  can  arise ;  while,  as  to  the  latter,  in  order 
to  find  out  who  is  vendor,  client,  or  friend,  you  must  go  into  evi- 
dence on  what  there  might  possibly,  as  in  Potter  v.  Duffield,  be  a 
conflict,  and  that  is  exactly  what  the  act  says  shall  not  be  decided 
by  parol  evidence.  The  court  would  be  thrown  on  parol  evidence 
to  decide  who  sold  the  estate,  who  was  the  party  to  the  contract ; 
the  act  requiring  that  fact  to  be  in  writing.  And  this  applies  even 
when  the  vendor  signs  the  contract,  but  describes  himself,  in  the 
contract,  as  "  solicitor  for  the  vendor ;  "  and  the  fact  of  the  pur- 
chaser knowing  who  the  vendor  is  does  not  make  the  contract 
valid  which  is  invalid  under  the  statute. 

Where  property  was  sold  by  auction,  the  particulars  and  con- 
ditions of  sale  not  disclosing  the  vendor's  name,  and  the  contract 
was  duly  signed  by  the  purchaser,  but  was  not  by  the  vendor 
or  the  auctioneer  acting  in  the  matter  of  sale,  and,  subsequently, 
in  consequence  of  delays  on  the  part  of  the  purchaser,  the  attor- 
neys for  the  vendor  (the  vendor  himself  being  a  member  of  such 
attorney's  firm)  wrote  in  the  course  of  a  correspondence  which 
ensued  :  "  Me  S.'s  purchase.  We  would  like  to  close  this  ; "  and, 
referring  to  certain  representations  made  in  the  advertisements  of 
the  sale,  "  They  were  not  made  part  of  the  contract  of  sale.  .  .  . 
Have  the  goodness  to  let  us  know  whether  the  vendee  will  pay 
cash  or  give  mortgage.  If  the  latter,  we  will  prepare  it  at  once 
and  send  you  draft  for  approval."  And,  on  a  subsequent  occa- 
sion :  "  lie  S.'s  purchase.  Herewith  please  receive  deed  for  ap- 
proval." And,  on  another  occasion,  the  vendor  himself  wrote : 
"  I  shall  take  immediate  steps  to  enforce  the  contract."  It  was 
held  by  the  Supreme  Court  of  Canada,  affirming  the  judgments  of 
the  courts  below,  that  the  conditions  of  sale,  together  with  the 
correspondence,  were  sufficient  to  constitute  a  complete  and  per- 

doubt  that  the  words  '  the  queen,'  or  '  the  cussed,  but  where  there  is  no  description, 

prime  minister,'  or  'the  president  of  the  as  in  the  case  before  us,  it  is  different." 

council,'  would  not  indicate  known  per-  ^  34  Ch.  Div.  182,  184. 

sons?     You  do  not  want  the  actual  bap-  '■^  3  App.  Cas.  1124,  1141. 

tisnial  and   surnames  ;    you  only  want  a  ^  L.  R.  18  Eq.  1. 

sufficient  description.     In  every  case  the  *  lb.  4,  8. 

question  of  what  is  sufficient  may  be  dis- 


PART   IX.]       THE   ESSENTIAL   REQUISITES   OF   THE   MEMORANDUM.      621 

feet  contract  between  the  vendor  and  purchaser  within  the  Statute 
of  Frauds. 1 

And  where  one  who  was  not  the  owner  sold  property  without 
disclosing  the  name  of  the  owner,  and  gave,  in  his  own  name,  a 
receipt  for  a  deposit  on  the  purchase-money,  the  jury  having  found 
that  he  sold  as  principal,  the  court  held  that  he  was  liable  on  his 
contract,  under  the  statute,  as  the  vendor,  although  the  name  of 
the  owner  did  not  appear  in  the  writino-.2 

And  though  the  names  of  the  parties  to  the  contract  appear  by 
the  writing,  this  is  not  sufficient  unless,  by  fair  intendment,  the 
names  appear  as  of  the  parties  to  the  contract,  and  not  merely 
as  matter  of  description.  Thus,  in  Vandenburgh  v.  Spooner,^ 
the  memorandum  signed  by  the  defendant  was  as  follows :  "  D. 
Spooner  agrees  to  buy  the  whole  of  the  lots  of  marble  purchased 
by  Mr.  Vandenburgh,  now  at  the  Lyme  Cobb,  at  Is.  per  foot ; " 
and  it  was  held  that,  as  this  did  not  show  that  the  marble  was 
purchased  from  Mr.  Vandenburgh,  the  plaintiff,  it  was  not  suffi- 
cient ;  that  the  essentials  of  the  contract  must  be  collected  from 
the  document  by  means  of  a  fair  construction  or  reasonable  in- 
tendment, and  that  the  seller's  name  must  appear  as  seller  in  the 
document,  and  not,  as  in  this  case,  as  a  part  of  the  description  of 
the  goods. 

In  Bailey  v.  Ogden^  the  defendant's  agent  wrote  in  his  memo- 
randum-book the  following  memorandum :  "  J.  Ogden  &  Co.  — 
Bailey  &  Bogert.  Brown  121,  white  16|,  60  and  90  days.  Deben- 
ture part  pay."  In  an  action  by  the  plaintiffs  for  the  price  of 
certain  sugars  alleged  to  be  sold  to  the  defendants,  this  mem- 
orandum was  relied  on  to  take  the  case  out  of  the  statute,  but 
the  court  held  that  it  was  absolutely  unintelligible  ;  that  it 
had  not  the  essentials  of  a  -contract,  or  memorandum  of  a  con- 
tract; that  no  person  could  ascertain  from  it  which  of  the  par- 
ties was  the  seller,  and  which  was  buyer  ;  nor  whether  there 
was  any  actual  sale  between  them,  nor  what  specific  article  was 
the  object  of  the  sale,  or  in  what  quantity,  or  what  was  the 
price. 

In  Newell  v.  Radford  ^  it  was  thought  that  Vandenburgh  v. 
Spooner  6  went  to  the  full  extent  of  the  law,  and  that  it  could  bo 
understood  only  on  the  principle  that  a  written  agreement  tliat 
"A.  agrees  to  buy  B.'s  horse  for  XIO  "  is  not  sufficient  to  satisfy 

1  O'Donohoe  v.  Stammers,  11  S.  C.  of  Southwell  f.  Bow<litcli,  1  (\  V.  Div.  374; 
Can.  R.  3.58.  Baumanu  v.  James,  L.  II,  3  Cli.  508. 

2  Loniz  V.   Millar,   4  C.  P.  Div.  450.  »  L.  H.  1  Ex.  316. 
And  see  Hi^gins  v.    Senior,   8  M.   &  W.  *  3  .Jolins.  399, 
834  ;  Jones  v.    I.ittledale,  6  A.  &  E.  486  ;  6  l.  R.  3  C.  P.  52. 
Calder  v.    Dobcll,    L.    R.  6  C.  P.   486  ;          «  L.  R.  1  Ex.  316. 


622  COMMENTARIES   ON   SALES.  [BOOK   IV. 

the  statute  of  Frauds,  because  it  could  not  be  inferred  by  reason- 
able intendment  from  such  a  writing  that  B.  was  the  seller.  In 
Newell  V.  Radford  the  memorandum  of  the  sale  of  thirty-two  sacks 
of  flour,  signed  by  the  defendant's  agent,  in  the  plaintiff's  book, 
was :  "  Mr.  Newell,  32  sacks  culasses  at  39s.,  280  lbs.,  to  await 
orders."  In  an  action  for  the  non -delivery  of  the  flour,  it  was  held 
that  parol  evidence  was  admissible  to  show  the  surrounding  circum- 
stances, and  that  as  by  such  evidence  it  appeared  that  the  plaintiff 
was  a  baker,  who  would  therefore  require  flour,  and  the  defendant 
a  person  who  was  in  the  habit  of  selling  it,  and  looking  at  the  na- 
ture of  the  entry  in  relation  to  these  facts,  there  was  no  reason- 
able doubt  that  it  was  a  memorandum  of  a  sale  from  the  defendant 
to  the  plaintiff.^ 

The  case  of  Leonard  v.  yredenburgh,^  was  one  of  an  action  on  a 
promissory  note,  which  was  guaranteed  by  the  defendant,  who  wrote 
on  the  note,  "  I  guaranty  the  above,"  and  signed  this  memorandum. 
The  note  was  made  by  one  Johnson,  in  favor  of  the  plaintiff, 
and  delivered  to  liim,  for  goods  bought  by  the  maker  of  the  note, 
from  the  plaintiff.  On  the  trial  before  Kent,  C.  J.,  evidence  was 
offered  to  show  that  the  whole  transaction  of  the  sale  of  the  goods 
and  the  giving  of  the  note,  with  the  defendant's  guaranty,  was  one 
entire  transaction,  and,  therefore,  as  the  note  implied  considera- 
tion, that  the  whole  of  the  defendant's  contract  was  sufficiently 
shown  to  satisfy  the  statute.  The  evidence  was  refused,  on  tlie 
ground  that  the  defendant's  undertaking,  being  to  pay  the  debt  of 
another,  was  within  the  statute,  and  that  the  consideration  for  his 
undertaking  did  not  appear  in  the  writing.  On  a  motion  for  a 
new  trial  it  was  held  that  the  evidence  had  been  improperly  re- 
jected, as  the  defendant's  contract  having  been  an  original  under- 
taking, consisting  in  his  undertaking  to  guaranty  the  debt  of 
Johnson  for  the  goods  then  purchased  ;  the  latter's  note,  being  for 
value  received,  importing  a  consideration  on  its  face,  was  all  the 
consideration  requisite  to  be  shown,  and  as  the  memorandum  dis- 
closed that  the  defendant  guaranteed  the  debt  of  Johnson,  and 
being  all  one  transaction,  the  value  received  was  evidence  of  con- 
sideration embracing  the  promises  both  of  Johnson  and  the  de- 
fendant.    The  judgment  of  the  court  was  delivered  by  Kent,C.  J., 

*  See  Macdonald  v.  Longbottom,  1  E.  ceived  of  even'  fact  within  the  knowledge 

&  E.   977,  987,  where  parol  evidence  was  of  the  parties  before  and  at  the  time  of 

admitted  to  show  that  "your  wool"  in-  the  contract,  for  the  purpose  of  showing 

eluded  wool  bought  of  other  farmers  be-  what  that  subject-matter  was."    In  Spicer 

side  that  which  came  from  the  plaintift's  i'.   Cooper,    1   Q.  B.    424,   parol  evidence 

own  sheep;  Lord  Campbell,  C.  J.,  there  was  admitted  to  show  that  the  price  of  £5, 

saying:    "I    am   of   opinion   that,   when  mentioned  in  the  memorandum,    meant, 

there  is  a  contract  for  the  sale  of  a  specific  by  the  custom  of  the  trade,  £5  per  cwt. 
subject-matter,  oral  evidence  may  be  re-  ^8  Johns.  29. 


PART   IX.]       THE   ESSENTIAL   REQUISITES  OF   THE   MEMORANDUM.      623 


himself,  who  had  changed  the  opinion  which  he  entertained  on 
the  trial.i 


1  In  this  case,  the  contract  is  referred  to 
by  the  court  as  a  "collateral  undertak- 
ing "  on  the  part  of  the  guarantor.  The 
term  "collateral"  is  sometimes  used  to 
distinguish  it  from  what  is  designated  an 
"original"  undertaking;  from  which  it 
has  sometimes  been  mistakenly  inferred 
that  a  collateral  undertaking  and  an 
original  undertaking  are,  therefore,  always 
necessarily  different  and  distinct.  The 
case  of  Leonard  v.  Vreden burgh,  8  Johns. 
29,  on  these  questions  has  been  not  a  little 
misunderstood  ;  and  we  find  in  some  of 
the  cases  in  this  country  the  opinion  ex- 
pressed that  that  case  has  broken  into  the 
rule  established  by  the  English  cases  with 
reference  to  the  construction  of  the  statute 
of  frauds.  But  we  think  that  not  only  is 
that  case  thoroughly  well  decided,  but 
that  it  is  in  strict  harmony  with  the  whole 
trend  of  the  English  cases  on  the  subject, 
from  Wain  r.  Warlters,  5  East,  10,  down. 
The  rules  to  be  deduced  from  Leonard 
V.  Vredenburgh,  8  Johns.  29,  and  the 
English  cases  in  conjunction,  are:  (1) 
That,  where  a  contract  is  made  between 
A.  and  B.,  by  which  B.  is,  for  instance, 
at  the  request  of  A.,  to  furnish  goods  to 
C,  there  the  contract  is  a  direct  contract 
between  A.  and  B.,  and  is  not  within  the 
statute.  (2)  Where  the  contract  is  be- 
tween A.,  B.,  and  C,  that  B.  is  to  sell 
is  to  C.,  and  that  A.  is  to  pay  for  the 
is  if  C.  do  not  pay  for  them,  there, 
while  the  contract  is,  on  the  part  of  A., 
a  collateral  one,  and  as  a  contract  to 
answer  for  the  debt,  default,  or  miscar- 
riage of  another,  must  be  in  writing, 
under  the  statute ;  the  whole  contract 
between  A.,  B.,  and  C  is,  as  it  was  in 
Leonard  v.  Vredenburgh,  8  Johns.  29  ; 
Stadt  V.  Lill,  9  East,  348,  and  in  other 
cases  of  the  same  class,  still  one  original 
ami  entire  transaction  ;  and  if  the  writing 
show  who  are  the  parties  to  the  contract, 
and  what  the  contract  is,  the  re(]uirenients 
of  the  statute  are  fully  complied  with, 
without  showing  any  additional  considera- 
tion. (3)  Where  A.  has  contracted  a  debt 
with  B.,  and  C'.  promises  to  pay  it,  the 
mere  promise,  unsupported  by  a  considera- 
tion of  benefit  to  the  promisee  or  of  injury 
to  the  promisor,  is  nudum  pactum,  and 
hence,  as  a  mere  collateral  promise  to  pay 
the  debt  of  another,  it  is  within  the 
statute,  and  all  the  essentials  of  the  con- 
tract are  not  shown  unless  not  only  the 
names  of  the  contracting  parties  appear  in 
the  writing,  but  there  is  also  a  note  in 
writing  of  the  entire  contract,  including 
the  consideration,  which,  in  this  case,  as 
it  does  not  move  between   B.  and  C,  but 


between  A.  and  B.,  is  a  consideration  of 
harm  to  B.  and  of  corresponding  benefit 
to  A. ;  which,  however,  must  appear  by 
the  writing,  or  there  is  no  note  in  writing 
of  the  contract.  (4)  Where  A.  is  indebted 
to  B.,  and  C,  for  some  new  consideration 
of  benefit  or  harm  moving  between  B.  and 
C,  the  newly  contracting  parties,  agrees 
to  pay  B.  A.'s  debt,  although  this  still,  in 
a  sense,  is  a  promise  to  pay  the  debt  of 
another,  yet,  as  it  is  a  new  and  entire 
contract  between  B.  and  C,  it  is  not 
within  the  statute,  and  does  not  require 
to  be  evidenced  by  writing. 

The  well-decided  New  York  cases,  fol- 
lowing the  leading  case  of  Leonard  v. 
Vredenburgh,  8  Johns.  29,  as  well  as  the 
equally  well  decided  English  cases,  ex- 
pressly sustain  all  these  positions,  in 
showing  that  the  essential  parts  of  the 
particular  contract,  under  the  statute, 
must  all  appear  by  the  writing,  or  by  fair 
inference  from  it.  See  Bailey  v.  Freeman, 
11  Johns.  221,  where  such  a  contract  as 
that  in  Leonard  t'.  Vredenburgh,  8  Johns. 
29,  and,  in  eff'ect,  in  Stadt  v.  Lill,  9  East, 
348,  is  properly  called  "an  m-iginal,  col- 
lateral agi'eement."  And  see  Rogers  v. 
Kneeland,  13  Wend.  114,  123  ;  Allen  v. 
Jaquish,  21  Wend.  628  ;  Union  Bank  v. 
Coster's  Executors,  1  Sandf.  563  ;  s.  c.  on 
appeal,  3  Comst.  203  ;  Brickhead  v. 
Brown,  5  Hill,  634  ;  2  Den.  375  ;  Smith 
V.  Weed,  20  Wend.  184  ;  Watson  j;. 
Randall,  20  Wend.  201  ;  Nelson  v.  Du- 
bois, 13  Johns.  175  ;  Farley  r.  Cleveland, 
4  Cow.  432  ;  9  Cow.  639  ;  Marquand  v. 
Hipper,  12  Wend.  520  ;  Douglas  v. 
Howland,  24  Wend,  35  ;  Parks  v.  I^rinc- 
kerhotf,  2  Hill,  663  ;  Manrow  v.  Dun- 
ham, 3  Hill,  584  ;  Waliatli  v.  TlKimjison, 

4  Hill,  200  ;  Hunt  v.  Brown,  5  Hill.  145; 
Potter  V.  The  Ontario  Mat.  liis.  Co.,  5 
Hill,  147.  See  Spittle  v.  Lavender,  2 
Br.  &  B.  452,  as  to  the  entirely  of  the 
transaction  in  that  case. 

The  English  use  of  Coldhani  v.  Show- 
ier, 3  C.  B.  312,  is  in  the  strictest  accord 
with  Leonard  v.  Vredmburgli,  8  Jolins. 
29,  and  the  New  York  cases  wliich  follow 
it.  Tliere  A.  contracted  to  purdiiise  of  B. 
the  good-will,  etc.,  of  a  public  iiouse.  On 
the  back  of  the  agn-ement  was  liic  follow- 
ing memorandum,  writt(!n  uiid  signed  by 
the  defendant,  after  tiio  exi'cuti..n  of  the 
agreeriient  by  A.  iincl  15.  :  "  I  hereby 
undertake  that  my  daughter  B.  shall  j>er- 
fonn  all  the  covenants  and  conditions 
named  in  the  annexed  ngreeincnt,  and 
hold  and  consider  myself  responsible  for 
her."     Parol  evidenc«  wius  given,  exintly 

05  it  was  held  in  Leonard  v.  Vredenburgh, 


624 


COMMENTARIES   ON   SALES. 


[book  IV. 


The  case  of  McMullen  v.  Heilberg  ^  was  decided  on  the  principle 
that  all  the  essentials  of  the  contract  to  satisfy  the  statute  must 
appear  by  the  memorandum.  There  the  defendant  purchased  at 
an  auction  certain  lots  of  maize,  the  property  of  the  plaintiffs, 
the  bulk  of  which  was  in  store.  In  an  action  for  not  removing  the 
maize  within  the  time  mentioned  in  the  conditions  of  sale,  and  to 
recover  the  loss  upon  a  resale,  the  evidence  showed  that  the  sale 
was  by  sample,  of  which  fact  there  was  no  mention  in  the  note  or 
memorandum  of  the  contract  made  by  the  auctioneer  at  the  time 
of  the  sale,  as  the  agent  of  both  of  the  parties  to  the  sale,  nor  in  a 
subsequent  correspondence  between  the  plaintiff  and  defendant. 
The  court  held  that  a  material  term  of  the  contract  not  having 
been  shown  by  any  written  note  or  memorandum,  the  statute  was 
not  satisfied.'^ 


8  Johns.  29,  it  might  be,  to  show  that  the 
agreement  and  guaranty  were  one  entire 
transaction.  It  was  contended  on  the 
part  of  the  defendant,  in  an  action  on  the 
guaranty,  that  the  memorandum  signed 
by  the  defendant  was  a  mere  collateral 
undertaking,  within  the  4th  section  of  the 
statute  of  frauds,  and  void  for  want  of  a 
consideration  expressed  on  the  face  of  it. 
But  tlie  court  held  that,  as  the  whole 
contract  was  one  entire  transaction,  the 
consideration  expressed  in  the  agreement 
between  X.  k  B.  was  sufficient  to  support 
the  undertaking  of  the  defendant ;  Maule, 
J.,  saying:  "The  circumstance  of  the 
one  memorandum  having  been  executed 
before  the  other  was  written  makes  no 
difference,  provided  the  whole  was  one 
transaction."  An<l  Tindal,  C.  J.  :  "It  is 
perfectly  indifferent  whether  the  signature 
was  on  one  side  of  the  paper  or  the  other  ; 
the  whole  being  one  transaction,  the  sig- 
nature of  the  defendant  applies  to  all  that 
precedes  it."  See  Jones  v.  Cooper,  1 
Cowp.  227,  as  to  a  collateral  undertaking 
to  pay  for  goods  to  be  furnished  to  a  third 
paitv. 

i"6  L.  R.  Ir.  463. 

2  The  same  principle  was  acted  upon 
in  New  York  in  Davis  v.  Shields,  26 
Wend.  341.  There  the  verbal  contract 
was  for  the  purchase  of  fifty  tons  of  iron 
at  |70  per  ton,  payable  in  six  months 
from  the  delivery  thereof,  provided  tlie 
iron  arrived  within  a  reasonable  time,  and 
was  in  good  order.  The  only  note  or 
memorandum  of  the  contract  was  one  in 
the  broker's  book,  which  omitted  all  ref- 
erence to  the  six  months'  credit,  and  to 
the  provision  that  the  iron  must  arrive  in 
a  reasonable  time.  The  court  held  that 
the  memorandum  was  insufficient  to  sat- 
isfy the  requirements  of  the  statute.  So, 
wjiere  the  broker  delivers  a  different  note 


of  the  contract  to  each  of  the  contracting 
parties,  there  is  no  valid  contract.  Gum- 
ming V.  Roebuck,  Holt,  172;  Grant  v. 
Fletcher,  5  B.  &  C.  436  ;  Suydam  i-. 
Clark,  2  Sandf.  133;  Peltier  v.  Collins, 
3  Wend.  459. 

In  Elmore  v.  Kingscote,  5  B.  &  C.  583, 
the  note  or  raemoi-andum  in  writing  did 
not  show  the  price  that  had  been  agreed 
upon  for  the  subject-matter  of  the  sale, 
and  the  court  held  that  there  was  no  suf- 
ficient memorandum  of  the  contract  to 
satisfy  the  statute.  It  was  claimed  for 
the  vendor  that  there  was  a  note  in  writ- 
ing of  a  bargain  for  the  purchase  of  a 
horse,  and  that  it  was  competent  for  the 
plaintiff  to  prove  the  value  of  the  horse 
by  parol  evidence,  and  to  recover  the 
amount  under  a  qiuintum  valebant  count. 
But  the  court,  in  deciding  otherwise,  said: 
"There  must  be  a  note  or  niemorandura 
in  writing  of  the  bargain.  If  it  were  com- 
petent to  a  party  to  prove  by  parol  evi- 
dence the  price  intended  to  be  paid,  it 
would  let  in  much  of  the  mischief  which 
it  was  the  object  of  the  statute  to  pre- 
vent." But  in  Hoadly  v.  McLaine,  10 
Bing.  482,  where  an  order  was  given  for 
goods,  but  no  price  was  agreed  on,  the 
note  or  memomndum  was  held  sufficient 
under  the  statute  ;  as,  in  the  absence  of  a 
price  being  fixed,  a  reasonable  price  would 
be  implied.  And  whatever  is  necessarily 
implied  may,  without  its  being  expressed, 
be  taken  to  be  in  the  instrument.  Per 
Burrough,  J.,  in  Newbury  i;.  Armstrong, 
6  Bing.  201. 

On  very  much  the  same  principle  that 
where  a  price  is  agreed  npoji  it  must  ap- 
pear in  the  writing,  otherwise  one  of  the 
leading  objects  of  the  statute  would  be 
defeated,  it  is  now  well  established  that 
a  contract  required  to  be  in  writing  under 
the  statute  cannot  be  varied  by  parol,  as 


PART  IX.]       THE   ESSENTIAL   REQUISITES   OP   THE   MEMORANDUM.      625 


But  to  satisfy  the  statute,  the  memorandum  may  be  supphed  by 


if  it  could,  there  would  not  be  in  the  varied 
contract  the  written  evidence  of  the  con- 
tract which  the  statute  requires. 

By  the  general  rules  of  the  coiumon 
law,  if  there  be  a  contract  which  has  been 
reduced  into  writing,  verbal  evidence  is 
not  allowed  to  be  given  of  what  has  passed 
between  the  parties,  either  before  the  writ- 
ten instrument  was  made  or  duriug  the 
time  that  it  was  in  a  state  of  preparation, 
so  as  to  add  to  or  subtract  from,  or  in  any 
manner  to  vary  or  qualify  the  written  con- 
tract ;  but  after  the  agreement  has  been 
reduced  into  -(vriting,  it  is  competent  to 
the  parties  at  any  time  before  breach  of  it, 
by  a  new  contract  not  in  writing,  either 
altogether  to  waive,  dissolve,  or  annul  the 
former  agreements,  or  in  any  manner  to 
add  to  or  subtract  from  or  vary  or  qualify 
the  terms  of  it,  and  thus  to  make  a  new 
contract,  which  is  to  be  proved  partly  by 
the  written  agreement,  and  partly  by  the 
subsequent  verbal  terms  engrafted  upon 
what  will  be  thus  left  of  the  written  agree- 
ment. Goss  V.  Lord  Nugent,  5  B.  &  Ad. 
64,  per  Denman,  C.  J. 

But  the  statute  requiring  the  contract 
or  some  note  or  memorandum  of  it  to  be 
evidenced  by  writing,  materially  qualifies 
this  principle  of  the  common  law.  We 
make  an  analysis  of  the  cases  on  the  sub- 
ject, which  have  been  generally  supposed 
to  be  in  irreconcilable  conflict  with  each 
other,  from  which  to  exhibit  the  nature 
and  extent  of  such  qualification. 

The  case  of  WaiTcn  v.  Stagg,  Salisbury 
Spring  Assizes,  1787,  before  Buller,  J., 
cited  3  T.  R.  591,  is  one  of  the  earliest 
cases  on  the  subject.  That  was  an  action 
of  assumpsit  for  non-performance  of  an 
agreement  to  deliver  to  the  plaintiff  a  cer- 
tain quantity  of  barley  on  or  before  De- 
cember 25,  1785.  It  was  proved  that  the 
barley  was  originally  to  have  been  deliv- 
ered on  that  day,  but  that  it  had  been  af- 
terwards agreed  that  the  defendant  should 
have  a  month  longer  to  ])eiform  the  con- 
tract. It  was  thereupon  objected  that  the 
contract  proved  was  different  from  that 
laid  in  the  declaration,  for  the  first  con- 
tract had  been  waived  by  the  subsequent 
agreement ;  but  Huller,  J.,  held  that  it 
was  only  a  continuation  of  the  first  con- 
tract, —  a  forbearance  on  the  jiart  of  the 
plaintiff  for  a  longer  time,  —  and  that  a 
performance  within  the  month  by  the  de- 
fendant would  have  been  a  substantial  per- 
formance within  the  meaning  of  the  first 
contract ;  that  one  time  might  by  mutual 
consent  be  substituted  for  anollici' ;  and 
then  a  performance  within  the  enlarged 
time  would  8uj)port  a  declaration  on  tlio 
original  contract.  But  in  Koe  v  Harri- 
son (a.  n.  1788),  2  T.  K.  427,  where  the 

VOL.  II.  40 


lease  contained  a  proviso  that  the  lessee 
should  not  let  the  whole  or  part  of  the 
premises  without  leave  in  writing,  on  pain 
of  forfeiting  the  lease,  it  was  held  that  a 
parol  license  to  let  i)art  of  the  premises 
did  not  discharge  the  lessee  from  the  re- 
striction of  the  proviso.  And  in  Brown 
V.  Goodman  (a.  d.  1789),  E.,  29  Geo.  3, 
B.  R.  3  T.  R.  592,  n.  (b),  which  was  an 
action  of  debt  on  a  bond,  the  bond  being 
a  common  arbitration  bond,  in  which  the 
time  was  linuted  for  the  arbitrator  to  make 
his  award,  the  declaration  stated  that  the 
time  was  afterwards  by  the  mutual  con- 
sent of  both  parties  enlarged,  within  which 
enlarged  time  the  arbitiator  made  his 
award,  and  it  then  stated  the  brcaidi.  To 
this  there  was  a  demurrer.  After  argu- 
ment at  the  bar,  Lord  Kenyon,  C.  J.,  said 
that  the  question  was  not  then  to  be  dis- 
cussed whether  the  party  had  not  some 
remedy,  but  whether  his  remedy  lay  on 
the  bond,  to  determine  which  the  court 
must  look  to  the  bond.  There  it  ap- 
peared that  the  defendant  had  bound  him- 
self to  abide  by  an  award  under  a  jicnalty, 
if  made  within  a  given  time  ;  and  the 
court  held  that  that  could  never  extend 
the  penalty  to  an  award  made  after  that 
time  under  a  new  agreement.  So  in  Lit- 
tler V.  Holland  (a.  d.  1790),  3  T.  K.  590, 
the  i^laintilf  covenanted  to  biiiiil  two 
houses  for  £500  by  a  certain  day,  and 
averred,  in  an  action  of  covenant  for  the 
money,  that  the  houses  were  built  in  the 
time.  The  evidence  was  that  the  time 
had  been  enlarged  by  jiarol  agreement, 
and  that  the  houses  were  finislicd  witliin 
the  enlarged  time.  It  was  held  that  tliis 
did  not  support  the  declaration.  Lord 
Kenyon,  C.  J.,  in  delivering  tiie  judg 
ment,  saying:  "This  point  is  .so  clear 
that  I  am  not  inclined  to  grant  a  rule  to 
show  cause.  The  declaration  charges  that 
the  parties  had  stipulated  by  deed  to  jier- 
forni  a  specific  thing  on  a  ceitain  day. 
Then  if  the  plaintifi,  who  sues  on  that 
contract,  be  not  bound  to  prove  it  as  laid, 
the  defendant  has  no  notice  of  that  wliich 
he  is  called  upon  to  answer.  1  lemenibcr 
an  action  being  brought  many  years  ago 
by  Mr.  Garrick,  or  one  of  the  nmnngers  of 
the  theatre,  against  Harry  for  not  peirorin- 
ing  his  contracL  It  appeared  on  the  trial 
that  the  mamigcr  had  given  tlie  defendHnt 
a  parol  license;  to  be  absent,  but  ns  llie 
articles  on  wliich  the  nclicm  was  founded 
required  sudi  a  license  to  be  in  writing, 
the  court  lield  that  it  could  not  b<'  iUn- 
pensed  with,  and  that  the  parol  ngreenient 
was  no  answer  to  the  plaintiir's  netion, 
though  perhaps  the  defendant  iiad  another 
remedy  in  a  court  of  e<|uity." 

Thresh  v.  IJuke,  1  Ksp.  53  (A.  I>.  1703), 


626 


COMMENTARIES   ON   SALES. 


[book  IV. 


documents  and  letters,  written  at  various  times,  if  they  can  be 

named  in  the  contract,  the  defendant,  on 
July  2,  called  on  the  ijlaintiffs  and  told 
them  that  as  the  sale  of  bacon  was  very 
dull,  he  hoped  they  would  not  press  it  ou 
him.     They  assured  him  that  they  would 
not.     Eighty-four   sides  were  weighed  at 
this  time,  and  a  further  quantity  on  July 
10.    The  plaintiffs,  having  forborne  to  de- 
liver any  more  bacon  for  some  time,   at 
length  informed   the   defendant  that   he 
had  exceeded  a  reasonable  time,  and  re- 
quested him  to  name  a  time  for  delivery. 
This   the   defendant    declined,    observing 
that  the  sales  were  very  dull.     After  sim- 
ilar  applications  without  effect,  the  bal- 
ance of  the  bacon  was  weighed  and  sent  to 
the  defendant  on  Sept.  30,  but  he  refused 
to  receive  it  ;  having  previously,  in  reply 
to  the  plaintiffs'  application  on  the  28th^ 
to  attend  and  see  it  weighed,  denied  that 
there  was  any  contract,  and  stated  that  he 
would  not  take  the  remainder  of  the  bacon. 
The  declaration  contained  three  counts  on 
the  contract ;  the  first  averring  that  the 
plaintiffs   delivered  a  part  of  the  bacon, 
which  was  accepted  and  paid  for  by  tlie 
defendant  under  the  contract,  and  that  the 
plaintiffs  offered  to  deliver  the  residue,  but 
the  defendant    would  not  accept  it.     In 
the  second  count  it  was  averred  that  the 
plaintiffs  intended  and  were  about  to  de- 
liver the  residue  under  the  contract,  but 
the  defendant,   on  July  2,  discharged  the 
plaintiffs  from  such  deliver}',  and  requested 
them  not  to  deliver  any  more  bacon  until 
further    orders    from    the    defendant,    to 
which  the  plaintiffs  assented  ;  the  defend- 
ant promising  to  give  orders  and  accept  and 
pay  for  the  residue  of  the  bacon  within  a 
reasonable  time,  according  to  the  terms  of 
the  original  contract.      In  the  tliird  count 
it  was  averred  that  the  defendant  requested 
the  plaintiffs  to  postpone  the  delivery  of 
the  residue  of  the  bacon  for  a  reasonable 
time.     At  the  trial  before  Lord  Ellenbor- 
ough,  C.  J.,  it  was  objected  on  the  part  of 
the  defendant  that  the  written   contract 
for  the  sale  and  purchase  of  goods  could 
not  be  varied  by  parol  ;  but  if  the  subse- 
quent parol  agreement  was  to  be  consid- 
ered, not  as  varying  the  written  contract, 
but  as  substituting  a  new  one  in  its  place, 
then  it  was  void  by  the  statute  of  frauds. 
But  Lord  Ellenborongh  held  that  the  ac- 
tion was  maintainable,  as  there  had  been 
a  dispensation  only  with  the  performance 
of  the  original  contract  in  respect  of  the 
delivery  of  the  bacon   at  the   stipulated 
times.     This  view  was  concurred  in  bv  the 
full  court.     The  court  held  (1)  That  there 
was  a  written  note  or  memorandum  which 
satisfied  the  statute,  independent  of  the 
fact  that  there  had  also  been  an  accept- 
ance and  actual   receipt  of  part  of  the 


was  an  action  on  the  case,  brought  to 
recover  the  penalty  for  the  breach  of  a 
special  agreement.  The  agreement  stated 
in  the  declaration  was  that  the  defendant 
had  agreed  to  assign  to  the  plaintiff  cer- 
tain premises,  with  the  fixtures,  etc.,  to 
be  taken  at  a  fair  appraisement  by  brokers 
to  be  named  on  both  sides.  The  appraise- 
ment was  to  be  made  on  Aug.  13  follow- 
ing. It  then  averred,  among  other  things, 
that  the  appraisement  was  made,  and  per- 
formance generally  on  the  part  of  the 
plaintiff.  It  appeared  in  evidence  that,  in 
point  of  fact,  the  appraisement  had  not 
been  made  on  the  13th,  but  on  Aug.  14  ; 
but  the  delay  was  caused  by  the  broker 
named  on  the  part  of  the  defendant,  who 
did  not  send  the  inventory,  without  which 
the  appraisement  could  not  be  made,  to 
the  plaintiffs  broker  until  the  14th,  when 
the  plaintiff's  broker,  with  the  consent 
of  the  defendant's  broker,  who  was  acting 
as  agent  for  him,  made  the  appraisement  ; 
so  tlaat  the  delay  was  caused  by  the  de- 
fendant's own  default,  and  performance  on 
the  day  was  waived  by  his  agent.  It  was 
insisted  for  the  defendant  that  the  evi- 
dence was  inadmissible,  as  it  was  receiv- 
ing parol  evidence  to  vary  a  written 
contract  ;  and  that,  as  the  pleadings 
stood,  there  was  only  one  count  on  the 
agreement,  averring  the  appraisement  to 
have  taken  place  on  the  13th,  when  the 
evidence  proved  it  to  have  really  taken 
place  on  the  14th  ;  and,  therefore,  that 
the  evidence  did  not  support  the  declara- 
tion. But  it  was  ruled  by  Lord  Kenyon, 
C.  J.,  that  the  evidence  was  good  and  ad- 
missible ;  for  that  when  the  parties  by 
consent  enlarge  the  time  within  which  an 
agreement  is  to  be  performed,  that  it  is  a 
continuance  of  the  same  contract,  and  on 
a  declaration  on  the  original  contract,  per- 
formance in  the  enlarged  time  is  good  evi- 
dence and  will  support  the  declaration. 

The  next  important  case  on  the  sub- 
ject is  Cuff  V.  Penu  (a.  d.  1313),  1  M.  & 
.Sel.  21,  which  is  considered  to  have  been 
overruled  by  the  later  case  of  Stead  v. 
Dauber,  10  A.  &  E.  57  ;  which  latter  case 
is,  however,  itself  doubted.  See  Black- 
burn on  Sales,  2d  ed.,  116,  117.  Cuff  v. 
Penn,  1  M.  &  Sel.  21,  was  an  action  of 
assumpsit  for  not  accepting  a  quantity  of 
bacon,  sold  under  a  written  contract," de- 
liverable in  lots  in  the  different  months 
from  April  to  August,  inclusive  ;  the  first 
delivery  to  be  on  April  20.  On  April  21, 
and  not  on  the  20th,  as  stipulated  by  the 
contract,  the  first  delivery  was  made  ;  but 
it  appeared  that  the  defendant  did  not 
make  any  objection  on  that  ground.  After 
several  deliveries  of  the  bacon  had  been 
made,  although  not  strictly  on  the  days 


PART  IX.]       THE   ESSENTIAL   REQUISITES   OP  THE   MEMORANDUM.      627 


properly  connected,   and   if,   coupled  together,  they  contain   by 


goods.  And  (2)  That  that  being  so,  the 
objection  resolveJ  itself  into  the  (question, 
not  whether  there  had  been  a  compliance 
with  the  statute,  but  more  pro[)erly  into 
that  whether  an  agreement  made  in  writ- 
ing had  been  varied  by  parol.  On  this 
point,  Lord  EUenborough,  delivering  the 
judgment  of  the  court,  said  :  "If  this 
agreement  has  been  varied  by  parol,  I 
should  have  thought,  on  the  authority  of 
Meares  v,  Ansell,  3  Wils.  275,  that  there 
would  have  been  strong  grounds  for  the 
objection.  But  here  what  has  been  done 
is  only  in  performance  of  the  original  con- 
tract. It  is  admitted  that  there  was  an 
agreed  substitution  of  other  days  than 
those  originally  specified  for  its  perform- 
ance ;  still  the  contract  remains.  Sup- 
pose a  deliver}'  of  live  hogs  instead  of  the 
bacon  had  been  substituted  and  accepted, 
might  not  that  have  been  given  in  evi- 
dence as  accord  and  satisfaction  ?  So  here 
the  parties  have  chosen  to  take  a  substi- 
tuted performance.  It  is  clear  that  neither 
of  them  in  the  outset  thought  it  necessary 
to  stand  on  the  letter  of  the  agreement  ; 
for  the  first  deliverj'  was  to  have  taken 
place  on  April  20,  and  was  not  made  until 
the  21st,  and  yet  no  objection  was  then 
taken.  Afterwards  a  new  mode  of  deliv- 
ery is  substituted  at  the  defendant's  ex- 
press request.  I  am  of  opinion,  therefore, 
that  neither  has  the  statute  of  frauds  been 
trenched  upon,  nor  has  any  rule  of  law 
respecting  parol  evidence  not  being  admis- 
sible to  vary  a  written  agreement,  been 
violated  in  this  instance."  It  seems  that 
there  was  a  readiness  and  willingiwss  on 
the  part  of  the  plaintiffs  to  deliver  the 
residue  of  the  bacon  at  the  dates  named  in 
the  contract,  but  that  they  did  not  do  so 
at  the  request  and  for  the  accommodation 
of  the  defendant.  There  having  been  a 
note  of  the  contract  in  writing  to  satisfy 
the  statute,  it  is  clear  that  the  plaintiffs 
being  ready  and  willing  to  deliver  the  res- 
idue of  the  bacon  in  accordance  with  the 
contract,  the  defendant  would  have  been 
liable  in  an  action  for  not  accepting  it, 
had  he  then  absolutely  refused  to  accept 
it.  It  would  seem,  therefore,  —  with  the 
same  readiness  and  willingness  to  deliver, 
—  if  the  delivery  were  deferred  at  the  re- 
quest and  for  tiie  accommodation  of  the 
defendant,  on  his  ultimately  refusing  to 
take  the  residue  of  the  bacon,  an  action 
would  as  well  lie  for  his  non-acceptance  of 
it,  as  though  he  had  refused  in  the  first 
instance.  The  contract  itself  would  seem 
to  be  as  much  intact,  and  as  enforceable  in 
the  one  case  as  in  the  other. 

Cuff  V.  Penn,  1  M.  &  S.  21,  was  doubted 
by  Parke,  B.,  in  Goss  v.  Lord  Nugent,  5  B. 
&  Ad.  at  p.  64.      But  Goss  v.  Lord  Nu- 


gent, 5  B.  &  Ad.  58,  is  clearly  distinguish- 
able from  Cuff  y.  Penn;  as  indeed  is  pointed 
out  by  Lord  Denman,  C.  J.,  in  delivering 
tlie  judgment  in  Goss  v.  Lord  Nugent, 
Ibid,  at  p.  67,  where  he  says,  referring  to 
Cuff  V.  Penn,  1  M.  &  S.  21,  and  some  of 
the  other  cases  we  have  examined  in  this 
note  :  "These  were  cases  where  the  time 
for  the  performance  of  the  contract  had 
been  enlarged  by  a  verbal  agreement,  and 
they  vjcrc  decided  on  the  ground  that  the 
original  contract  continued,  and  that  it 
was  only  a  siibstitutimi  of  different  days 
of  performance.  It  is  not  necessary  to 
say  whether  these  cases  were  rightly  de- 
cided. If  they  were  so,  still  the  present 
is  a  different  case,  for  here,  without  doubt, 
the  terms  of  the  orginal  contract  were 
varied."  The  verdict  in  Cuff  v.  Penn,  1 
M.  h  S.  21,  was  really  entered  on  the 
second  and  third  counts  of  the  declara- 
tion. But  the  case  was  treated  (see  per 
the  Solicitor-General,  Park,  and  Lawes, 
at  p.  24  :  '^'^  Here  the  declaration  contains 
counts  on  the  original  agreement,"  etc.) 
as  though  the  verdict  were  given  gener- 
ally ;  and  the  w^hole  spirit  of  Lord  Ellen- 
borough's  judgment  is  that  the  evidence 
sustained  the  declaration  on  the  original 
contract,  thus :  "  Here  what  has  been 
done  is  only  in  performance  of  the  oi-iginal 
contract."  No  reference  is  made  by  the 
court  to  the  fact  that  the  verdict  had  not 
been  given  generally,  and  the  only  con- 
tract that  the  court  seem  to  have  had  in 
mind  in  the  case  was  that  relied  on  in  the 
first  count  of  the  declaration,  referred  to 
by  the  court,  in  their  judgment,  as  a 
"contract  for  sale  in  writing."  Of  course, 
but  for  the  first  count  of  the  declaration, 
the  whole  reasoning  in  the  judgment 
would  fail  to  apply  to  the  case  as  it  was 
in  fact  treated  by  the  court,  and  the  case 
itself  would  not  establish  the  doctrine 
which  was  clearly  in  the  mind  of  the 
court,  and  which  is  in  the  strictest  har- 
mony with  the  latest  English  cases  on  the 
subject. 

In  Goss  V.  Lord  Nugent,  5  B.  &  Ad. 
58,  the  jilaintiff  sold  several  lots  of  land 
to  the  defendant,  the  memorandum  of  the 
contract  of  sale  providing  that  the  vendor 
was  to  make  a  good  title  to  the  lots.  This 
the  plaintiff  v:as  finable  to  do,  his  title 
being  defective  as  to  one  of  the  lots.  The 
defendant  verbally  agreed  to  accept  the 
lots,  notwithstanding  the  defect  in  the 
title  as  to  one  of  them,  and  jiossession  of 
the  whole  was  delivered  to  him.  Subse- 
quently he  refused  to  comjilete  the  pur- 
chase. The  court  held  that,  under  the 
statute,  the  contract  had  to  be  in  writing, 
and  that  it  was  not  the  written  contract 
which  was  sought  to  be  enforced,  but  a 


628 


COMMENTARIES   ON  SALES. 


[book   IV. 


statement  or  reference  all  the  essential  parts  of  the  bargain,  signed 
by  the  party  to  be  charged,  or  his  duly  authorized  ageut.^ 


new  contract  which  the  parties  had  en- 
tered into,  and  that  that  new  contract  was 

1  Lerned  v.  Wannemacher,  9  Allen, 
412  ;  Williams  v.  Bacon,  2  Gray,  387  ; 
Salmon  Falls  Manuf.  Co.  v.  Goddard,  14 
How.  446  ;  Thayer  v.  Fuller,  22  Ohio  St. 
62  ;  Parkhurst  v.  Van  Cortlandt,  1  Johns. 
Ch.'  274;  Abeel  v.  Eadcliffe,  13  Johns. 
297  ;  Osborn  v.  Phelps,  19  Conn.  63 ; 
Bates  V.  Col,  10  Conn.  292  ;  Isham  v. 
Morgan,  9  Conn.  378  ;  Doty  v.  Wilder, 
15  111.  407. 

In  Tawney  v.  Crowther,  3  Br.  Ch. 
Cas.  318,  Lord  Thurlow  thus  lays  down 
the  rule  as  to  references  in  letters  to  agree- 
ments, sufficient  to  satisfy  the  statute  : 
"  If  the  letter  contains  the  terras  of  the 
agreement,  or  if  it  refers  to  another  paper 
■which  contaius  the  terms,  that  is  sufficient ; 
for  I  am  of  opinion  that  if  a  letter  refers 
so  clearly  to  an  agreement  as  to  show  what 
was  meant  by  the  parties,  where  the  exist- 
ence of  the  paper  is  proved  by  parol,  that 
will  take  the  case  out  of  the  statute." 
The  case  in  which  this  rule  was  laid  down 
by  Lord  Thurlow,  itself  furnished  an  illus- 
tration of  the  difficulty  which  arises  in  the 
application  of  the  rule.  In  Tawney  v. 
Crowther  (a,  d.  1789),  3  Br.  Ch.  Cas. 
161,  the  defendant,  Crowther,  being  seised 
of  a  house  which  he  was  desirous  of  sell- 
ing, the  plaintiff  employed  an  attorney  to 
treat  for  the  purchase  ;  who  agreed  to  give 
and  Crowther  to  take  £1100  ;  and  it  was 
agreed  between  them  that  the  agreement 
should  be  reduced  into  writing  in  order  to 
be  signed.  It  was  accordingly  reduced 
into  writing ;  but  Crowther  wishing  to 
receive  the  rent  due  at  JVIichaelmas,  pos- 
session was  not  to  be  delivered  until  then  ; 
but  he  declared  that  his  word  was  as  good 
as  his  bond,  and  that  on  the  following 
Tuesday,  he  would  call  on  the  attorney 
and  sign  tlie  agreement.  Crowther  not 
having  kept  his  appointment,  the  attor- 
ney wrote  him  a  letter  saying  that  "  though 
he  had  no  doubt  Crowther's  word  would 
be,  as  he  had  declared,  as  good  as  his  bond, 
yet  as  life  was  uncertain,  he  wished  the 
ac^eenient  to  be  signed."  In  answer  to 
this,  Crowther  wrote  a  letter,  in  which  he 
stated  he  had  been  from  home,  and  ac- 
knowledged he  had  said  his  word  should 
be  as  good  as  his  bond,  and  that  there  was 
time  enough  from  thence  till  Michaelmas 
to  settle  everything  ;  and  again  repeated 
that  his  word  should  always  be  as  good  as 
any  security  he  could  give.  Crowther 
having  refused  to  complete  the  agreement, 
the  plaintiff  filed  his  bill  for  specific  per- 
formance. Lord  Thurlow  overruled  the 
defendant's  plea  of  the  statute  of  frauds, 


to  be  proved,  partly  by  the  former  written 
agreement,  and  partly  by  the  new  verbal 

that  there  was  no  conti-act  in  writing. 
When  the  cause  came  on  for  hearing 
(Tawney  v.  Crowther,  3  Br.  Ch.  Cas.  318), 
the  statute  was  insisted  on  by  the  answer, 
but  Lord  Thurlow  adhered  to  his  previous 
decision,  and  held  that  the  agreement  was 
sufficiently  referred  to  by  Crowther  in  his 
letter.  In  this  case  the  agreement  was 
not  only  put  into  writing,  but  it  was  kept 
in  the  custody  of  Crowther  himself,  so  that 
no  question  arose  as  to  his  having  actually 
in  fact  assented  to  the  particular  agree- 
ment which  was  prepared  for  his  execution. 
Lord  Thurlow  thus  dealt  with  the  question, 
after  having  laid  down  the  rule  as  we  have 
stated  it:  "Crowther  writes  a  letter  re- 
ferring to  a  paper  in  his  own  possession, 
and  promises  to  perform  it  ;  such  a  letter 
would  be  sufficient  to  draw  them  from  the 
objection,  that  the  promise  is  not  in  writ- 
ing. Then  independent  of  the  statute: 
if  a  letter  now  will  bind  the  party,  before 
the  statute  a  parol  agreement  would  have 
been  binding.  The  question  is,  whether 
here  is  sufficient  to  raise  a  contract  that 
will  bind.  If  the  letter  cannot  be  referred 
to  the  agreement,  or  does  not  contain 
proper  terms,  I  cannot  treat  it  as  out  of 
the  statute  ;  but  I  confess,  on  what  ap- 
pears here,  the  papers  do  refer  to  that 
agreement,  and  contain  a  promise  to  per- 
form it ;  the  defendant  did  intend  by  rhe 
letter  to  raise  a  confidence  that  the  agree- 
ment should  be  performed.  If  he  had 
meant  only  to  treat  further,  it  would  not 
have  taken  it  out  of  the  statute,  being 
only  ad  referendum;  but  no  doubt  lie  meant 
to  refer  to  the  agreement  which  had  been 
reduced  to  writing,  and  which  he  had  car- 
ried away  with  him.  The  question  is, 
whether  the  writing  referred  to  in  tlie  at- 
torney's letter  was  that  wliich  he  wislied 
to  be  signed.  I  think  it  was.  Then 
Ciowther  said  he  would  call  on  him.  He 
admits  that  on  the  day  he  thought  ho 
should  be  there,  he  would  call  ;  he  does 
not  deny  it  was  for  the  purpose  of  signing 
the  agreement.  This,  if  it  refers  to  the 
agreement,  is  sufficient ;  and  I  think  it 
does.  There  is  evidence  in  the  cause,  of 
the  parol  agreement,  which  refers  it  to  the 
head  of  cases  where  evidence  is  admitted 
of  what  passed  by  parol.  It  is  argued  that 
he  took  time,  till  Michaelmas,  not  to  com- 
plete the  former,  but  to  make  a  further 
agreement.  It  is  true  the  conveyance  was 
to  be  at  Michaelmas.  Then  what  are  his 
words  '{  '  My  word  shall  be  as  good  as 
any  security  I  could  give."  The  signing  the 
paper  was  the  security  pointed   to.     On 


PART   IX.]      THE   ESSENTIAL   REQUISITES   OF   THE   MEMORANDUM.      629 


In  the  old  case  of  Hinde  v.  Whitehouse  ^  where  sugars  were 


agreement,  the  contract  not  being  wholly 
in  writing,  and,  therefore,  not  according 

the  whole  matter,  therefore,  he  has  agreed, 
by  writing,  to  sign  it.  Several  cases  have 
been  cited,  and  it  has  been  argued  that  he 
declined  to  sign  it.  If  he  had  said  he 
never  would  sign  it,  he  could  not  have 
been  bound  ;  but  if  he  said  he  never  would 
sign  it,  but  would  make  it  as  good  as  if 
he  did,  it  would  be  a  promise  to  perform 
it.  If  he  said  he  would  never  sign  it  be- 
cause he  would  not  hamper  himself  by  an 
agreement,  it  would  be  too  perverse  to  be 
admitted  ;  but  here  I  am  of  opinion  that  the 
agreement  must  be  performed."  Tawney 
V.  Crowther,  3  Br.  Ch.  Gas.  161,  318,  was 
doubted  by  Lord  Redesdale,  in  Clinan  i;. 
Cooke,  1  Sch.  &  Lef.  22,  34  ;  but  it  was 
approved  and  followed  in  Foster  v.  Hale, 
3  Ves.  696,  713. 

In  Clinan  v.  Cooke,  1  Sch.  &  Lef.  22, 
the  defendant  caused  an  advertisement 
to  be  inserted  in  the  public  papers,  adver- 
tising land  to  be  let  for  three  lives  or  thirty- 
one  years;  application  to  be  made  to  himself 
or  to  one  M.  In  conseipience  of  this  ad- 
vertisement, the  plaintiffs  ajiplied  to  IL, 
and  entered  into  a  treaty  with  him  for  a 
lease  of  the  lands,  a  memorandum  thereof 
being  signed  by  M.  and  one  of  the  plain- 
tiffs. The  memorandum  contained  no 
reference  to  the  advertisement,  nor  to  the 
term  of  years  named  in  it.  The  plaintiffs 
tendered  a  lease  for  three  lives,  which  the 
defendant  refused  to  execute,  and  a  bill 
was  filed  for  specific  performance.  It  was 
contended  that  the  omission  of  the  term 
might  be  supplied  b\'  reference  to  the  ad- 
vertisement. But  Lord  Redesdale  held 
that  this  could  not  be  done,  (1)  because 
the  advertisement  left  the  term  uncertain, 
as  it  was  there  named  as  "  three  lives  (/>• 
thirty-one  years;"  and  (2)  because  the 
agreement  contained  no  reference  to  the 
advertisement.  On  this  latter  point,  Lord 
Redesdale  said:  "Suppose  the  advertise- 
ment had  expressed  three  lives  only,  you 
are  then  to  connect  these  two  transactions. 
How  ?  By  parol  evidence.  Now,  if  the 
agreement  had  referred  to  the  advertise- 
ment, I  agree  parol  evidence  might  have 
been  permitted  to  show  what  was  the 
thing  (namely  the  advertisement)  so  re- 
ferred to,  for  then  it  would  be  an  agree- 
ment to  grant  for  so  much  time  as  was 
expressed  in  the  advertisement,  and  then 
the  identity  of  the  advertisement  might  be 
proved  by  parol  evidence  ;  but  there  is  no 
reference  whatever  to  the  advertisement  in 
this  agreement." 

In  Brodie  v.  St.  Paul,  1  Ves.  Jr.  326, 
defendant  having  intimated  his  intention 


to  the  general  effect  and  meaning  of  the 
statute  of  frauds.     The  very  marked  dis- 

to  relet  a  farm,  plaintiff  proposed  to  be- 
come his  tenant.  They  met  for  that  pur- 
pose, when  defendant  read  from  a  paper 
certain  items  as  to  the  terms  of  their  agree- 
ment, and  an  agreement  was  drawn  up 
with  reference  to  that  paper,  and  the 
agreement,  signed  by  both  parties,  was 
deposited  in  the  hands  of  A.  They  were 
to  meet  again  to  complete  the  business. 
When  they  met  again,  the  defendant's 
steward  produced  a  paper  containing  cov- 
enants for  a  lease,  which  he  represented  to 
be  the  paper  read  to  the  plaintiff'  before 
the  agreement,  to  which  the  articles  of 
agreement  referred.  Plaintiff'  denied  this  ; 
insisting  that  the  covenants  were  new  to 
him,  and  objecting  to  several.  Defendant 
insisted  that  all  the  clauses  contained  in 
that  paper  should  be  covenants  in  any  lease 
to  be  made  by  him  ;  and  that  all  of  them 
had  been  read  to  the  plaintiff  at  the  first 
meeting.  Plaintiff  denied  this  ;  upon 
which  the  treaty  was  broken  off,  and  the 
bill  was  brought  for  a  specific  ]ierformance 
of  the  agreement  according  to  such  clauses 
as  the  plaintiff  alleged  had  been  read  to 
him,,  to  prove  which  he  went  into  parol 
evidence.  Buller,  J.,  sitting  for  the  Lord 
Chancellor,  in  dismissing  the  bill,  said  : 
"  The  question  here  is.  What  is  the  agree- 
ment ?  The  whole  depends  upon  parol. 
If  the  agreement  is  certain,  and  explained 
in  writing  signed  by  the  parties,  that  binds 
them  J  if  not,  and  evidence  is  necessary  to 
prove  what  the  terms  were,  to  admit  it 
would  effectually  break  in  upon  the  stat- 
ute, and  introduce  all  the  mischief,  incon- 
venience, and  uncertainty  the  statute  was 
designed  to  prevent.  The  only  thing  to 
support  this  case  would  be  to  prove  by 
jiarol  evidence  which  of  these  covenants 
were  read,  and  which  were  not  :  that  is, 
directly  prohibited  by  statute  ;  and  there- 
fore the  bill  must  be  dismissed,  but  with- 
out costs,  as  the  circumstances  are  not 
very  favorable  to  the  defendant."  For 
cases  where  letters,  suflSciently  specifying 
the  terms,  have  been  held  sufficient  notes 
or  memoranda  of  an  agreement  to  satisfy 
the  statute  of  frauds,  see  Foster  v.  Hale, 
3  Ves.  696  ;  Coles  v.  Treeothick,  9  Ves. 
350  ;  Fowle  v.  Freeman,  9  Ves.  351  ; 
Huddleston  v.  Briscoe,  11  Ves.  550,  583  ; 
Halsey  v.  Grant,  13  Ves.  73  ;  Ogilvie 
V.  Foljambe,  3  Mer.  53  ;  2  Jac.  &  W. 
426  ;  Gordon  v.  Trevelyan,  1  Price,  64 
Backhouse  v.  Mohnn,  3  Swanst.  434,  n 
Stratfoi'd  v.  Bosworth,  2  Ves.  &  B.  341 
Schneider  v.  Norris,  2  M.  &  S.  286. 


7  East,  558. 


630 


COMMENTARIES  ON  SALES. 


[book  IV. 


sold  by  auction,  the  auctioneer,  at  the  commencement  of  the  sale, 
havino;  the  catalogue  of  the  suojars  to  be  sold,  and  also  a  written 


tinction  exists  between  this  case  and  Cuff 
V.  Penn,  1  M.  &  S.  21,  that  in  this  case 
the  plaintiff  was  not  himself  in  a  position 
to  perform  his  written  contract  at  all,  and 
therefore,  could  not  maintain  an  action  on 
it  without  reliance  on  the  verbal  agree- 
ment to  give  him  a  cause  of  action  ;  so 
that,  without  such  verbal  agreement,  the 
defendant  could  have  refused  to  perform 
the  contract  in  the  first  instance,  and  the 
plaintiff  would  have  had  no  remedy.  But 
in  Cuff  V.  Penn,  1  M.  &  S.  21,  there  was 
a  perfectly  good  contract  within  the  stat- 
ute, which  the  plaintiff  was  in'a  position 
to  perform,  and  which,  under  the  statute, 
he  could  have  enforced  in  the  first  in- 
stance against  the  defendant,  on  his  re- 
fusal then  to  accept  the  subject  of  the 
sale,  without  the  necessity  of  resorting  to 
any  other  than  the  written  contract  itself. 
The  cases  would  have  been  analogous  had 
the  plaintiff,  in  Goss  v.  Lord  Nugent,  5 
B.  &  Ad.  58,  been  able  and  willing  to 
have  performed  his  contract  to  make  a 
good  title  to  all  the  lots  ;  but,  for  the  ac- . 
commodation,  and  at  the  request  of  the  de- 
fendant, substituted  a  later  day  than  that 
named  in  the  agreement  for  closing  up  the 
transaction.  See  Parteriche  v.  Powlet,  2 
Atk.  383  ;  Price  v.  Dyer,  17  Ves.  356  ;  2 
Story  Eq.  Jur.  §  770  a;  Townshend  v. 
Stangroom,  6  Ves.  328,  note  (a),  (Sum- 
ner's ed. )  ;  Brodie  v.  St.  Paul,  1  lb. 
326,  n.  (a);  Hare  v.  Shearwood,  lb.  2il, 
n.  (a). 

Harvey  v.  Grabham,  5  A.  &  E,  61,  is, 
in  principle,  essentially  the  same  as  Goss 
V.  Lord  Nugent,  5  B.  &  Ad.  58.  The 
written  agreement  relating  to  the  convey- 
ance by  lease  of  an  interest  in  lands,  within 
the  4th  section  of  the  statute,  contained  a 
clause  that  the  straw,  etc.,  on  the  lands 
should  be  valued  by  persons  named  re- 
spectively by  plaintiff  and  defendants,  and 
the  amount  paid  to  plaintiff  by  defend- 
ants. By  verbal  agreement  this  was  al- 
tered by  the  parties,  one  person  alone 
being  agreed  upon  as  the  joint  valuator. 
The  court  held,  in  accordance  with  Goss 
V.  Lord  Nugent,  5  B.  &  Ad.  58  (and  see 
Earl  of  Falmouth  v.  Thomas,  1  Cr.  &  M. 
89),  that  this  was  a  new  agreement  by 
parol,  and  was  invalid  to  alter  the  written 
contract  under  the  statute,  which  agree- 
ment could  not  be  altered  otherwise 
than  by  writing ;  for,  if  it  could,  it 
would  follow  that  if  the  defendants  had 
brought  the  action  to  enforce  the  execu- 
tion of  the  lease,  they  would  have  been 
obliged  to  state  the  altered  agreement 
as  the  consideration,  and  to  aver  a  readi- 
ness to  perform  it,  and  would  have  had 


to  prove  their  case  partly  by  writing  and 
partly  by  oral  evidence, — the  very  pre- 
dicament which  the  statute  of  frauds  was 
intended  to  prevent.  The  marked  dis- 
tinction between  Goss  v.  Lord  Nugent,  5 
B.  &  Ad.  58,  and  Harvey  v.  Grabham,  5 
A.  &  E.  61,  on  the  one  hand,  and  Cuff  v. 
Penn,  1  M.  &  S.  21,  on  the  other,  is,  that 
in  neither  of  the  former  cases  could  the 
plaintiff  aver  a  readiness  and  willingness 
to  perform  the  written  conti-act  according 
to  its  terms ;  but  in  each  of  those  cases 
the  plaintiff  was  forced,  in  order  to  make 
out  a  prima  facie  cause  of  action,  to  de- 
clare on  the  parol  agreement  as  altering 
the  written  agreement,  which  clearly  the 
statute  will  not  allow.  In  neither  of  those 
cases  could  the  plaintiff  have  recovered 
on  the  original  wj-itten  agreement,  because 
he  could  not  show  in  effect  a  performance 
of  its  terms,  and  he  was  forced  to  rely 
upon  the  parol  variation  of  the  terms  in 
order  to  make  out  a  readiness  to  perform 
any  contract  at  all.  But  in  Cuff  v.  Penn, 
1  M.  &  S.  21,  the  plaintiff  could  aver  a 
readiness  and  willingness  to  perform  his 
contract  in  accordance  with  its  terms,  and 
was  not  forced  to  depend  upon  an  alleged 
altered  contract.  On  the  contrary,  it  was 
the  defendant,  then,  who  was  driven  to 
rely  on  an  alleged  altered  contract ;  and 
the  court  held  in  effect,  as  in  Goss  i'.  Lord 
Nugent,  5  B.  &  Ad.  58,  and  in  Harvey  v. 
Grabham,  5  A.  &  E.  61,  that  the  written 
agreement  was  the  only  agreement  which 
could  be  enforced;  the  parol  agreement,  in 
neither  of  these  cases,  varying  the  terms 
of  the  original  written  agreement.  As  we 
have  pointed  out  above,  if,  in  Cuff  v. 
Penn,  1  M.  &  S.  21,  the  defendant,  in- 
stead of  requesting  delay  in  the  delivery 
of  the  bacon  had  refused  then  to  take 
it,  he  would  at  once  have  been  liable 
for  non-acceptance  of  the  goods  under 
the  original  written  contract ;  whereas, 
in  Goss  V.  Lord  Nugent,  5  B.  &  Ad.  58, 
and  Harvey  v.  Grabham,  5  A.  &  E.  61,  as 
we  have  pointed  out,  the  plaintiff,  respec- 
tively, in  these  cases  was  only  able  to 
allege  any  cause  of  action  at  all  by  relying 
on  the  parol  agreement,  as  giving  a  cause 
of  action  by  an  alleged  variation  of  the 
written  contract. 

Stowell  V.  Robinson,  3  Bing.  N.  C. 
928,  is  another  case  identical,  in  principle, 
with  Goss  V.  Lord  Nugent,  5  B.  &  Ad.  58, 
and  Harvey  v.  Grabham,  5  A.  &  E.  61.  In 
that  case,  the  plaintiff  paid  the  defendant 
a  deposit  of  £50,  under  a  written  agree- 
ment for  the  sale  of  a  lease  of  a  public 
house  to  the  plaintiff,  possession  of  the 
house  to  be  delivered  by  May  3.     In  an 


PART   IX.]       THE   ESSENTIAL   REQUISITES   OF   THE   MEMORANDUM.      631 


paper  containing  the  conditions  of  sale,  in  his  left  hand,  at  the 
Same  time,  read  the  latter  paper,  as  the  conditions  on  which  the 


action  for  the  return  of  the  deposit  money, 
the  defendant  alleged  that  neither  the 
plaintiff  nor  deteiidant  was  ready  by  the 
day  in  the  agreement  mentioned  for  com- 
pleting the  purchase  ;  that  they  therefore 
agreed  to  postpone  the  performance  of  it 
for  a  reasonable  time,  and  that  the  plain- 
tiff should  accept  an  assignment  of  the 
lease  if  the  defendant  made  out  a  title 
within  such  reasonable  time  ;  that  within 
such  reasonable  time  the  defendant  made 
it  appear  to  the  plaintiff  that  he  had  such 
title ;  but  the  plaintiff  refused  to  perform 
the  agreement,  and  prevented  its  comple- 
tion. Here  it  was  the  defendant  who  was 
relying  on  an  alleged  variation  by  parol  of 
a  written  contract  within  the  statute.  The 
defence  could  no  more  be  sustained  in  this 
case,  than  the  other  party,  if  he  had  been 
bringing  the  action,  as  in  Goss  v.  Lord 
Nugent,  5  B.  &  Ad.  58,  and  Harvey  v. 
Grabham,  5  A.  &  E.  61,  on  a  contract  re- 
quired to  be  in  writing  under  the  statute, 
could,  with  an  alleged  variation  by  parol, 
have  sustained  an  action  on  a  contract 
thus  alleged  and  shown  to  be  partly  in 
writing  and  partly  oral.  And  so,  in  effect, 
the  court  held,  in  Stowell  v.  Robinson,  3 
Bing.  N.  0.  928,  937  ;  Tindal,  C.  J.,  in 
delivering  the  judgment  of  the  court,  there 
saying  :  "Can  the  day  for  the  completion 
of  the  purchase  of  an  interest  in  land,  in- 
serted in  a  written  contract,  be  waived  by 
a  parol  agreement,  and  another  substituted 
in  its  place  so  as  to  bind  the  parties  ?  We 
are  of  opinion  that  it  cannot.  This  is  an 
agreement  for  the  sale  of  land,  upon  which, 
by  the  statute  of  frauds,  sec.  4,  no  action 
can  be  brought  '  unless  it  is  in  writing, 
and  signed  by  the  party  to  be  charged,  or 
his  agent  thereunto  lawfully  authorized.' 
Now  we  cannot  get  over  the  difficulty 
which  has  been  pressed  upon  us,  that  to 
allow  the  substitution  of  a  new  stipulation 
as  to  the  time  of  completing  the  contract 
by  reason  of  a  subsequent  parol  agreement 
between  the  parties  to  that  effect,  in  lieu 
of  a  stipulation  as  to  time  contained  in 
the  written  agreement  signed  by  the  par- 
ties, and  partly  not  in  writing,  but  by 
parol  only,  amounts  to  a  contravention 
of  the  statute  of  frauds.  Such  was  the 
opinion  expressed  by  Lord  Chancellor 
Hardwicke  in  Parteriche  v.  Powlet,  2  Atk. 
383  ;  of  Sir  W.  Grant,  Master  of  the  Rolls, 
in  Price  v.  Dyer,  17  Ves.  356.  And  we 
think  the  reasoning  upon  which  the  judg- 
ment of  the  Court  of  King's  Bench  pro- 
ceeds in  Goss  V.  Lord  Nugent,  5  B.  &  Ad. 
68,  goes  directly  to  the  point,  that  the 
evidence  now  under  discussion  is  inadmis- 
sible."     In  this  case,  the  defendant  ad- 


mitted his  inability  to  perform  an  agree- 
ment, necessary  to  be  in  writing  under 
the  statute,  and  relied  on  a  jiarol  variation 
of  it.  Evidently  that  could  not  have  been 
sustained  without  repealing  the  statute. 
Stead  V.  Dawber,  10  A.  &  E.  57,  is  not, 
we  think,  any  more  in  antagonism  with 
Cuff  V.  Penn,  1  M.  &  S.,  21,  than  it  is 
with  Stowell  v.  Robinson,  3  Bing.  N.  C. 
928  ;  Goss  v.  Lord  Nugent,  5  B.  &  Ad, 
58  ;  or  Harvey  v.  Grabham,  5  A.  &  E.  61. 
We  think,  in  fact,  on  the  principle  on 
which  we  have  shown  these  cases  to  be 
reconcilable  with  each  other,  that  Stead 
V.  Dawber,  10  A.  &  E.  57,  is  quite  recon- 
cilable with  all  these  cases.  In  Stead  v. 
Dawber,  the  written  contract  was  for  the 
sale  by  the  defendants  to  the  plaintiff  of 
a  cargo  of  bones,  to  be  delivered  on  "the 
20th  to  the  22nd  of  May."  The  action 
was  for  the  non-delivery  of  the  bones.  The 
declaration  alleged  a  variation  of  the  con- 
tract by  an  oral  agi-eement  between  the 
parties,  to  the  effect  that  the  bones  were 
to  be  delivered  on  May  24.  The  bones 
were  not  sent  at  that  time,  and  the  price 
was  aftenvards  tendered,  and  refused  by 
the  defendants.  The  defendants  pleaded, 
inter  alia,  that  a  part  of  the  contract  de- 
clared on,  namely,  as  to  the  time  for  the 
delivery  of  the  bones,  was  oral ;  to  which 
the  plaintiff  replied  that  that  was  not  a 
part  of  the  contract.  The  court,  in  effect, 
held  that  it  was,  as  in  fact  it  was,  a  part 
of  the  contract  on  which  the  plaintiff  had 
declared,  and  had  relied  on,  in  his  declara- 
tion. The  conclusion,  then,  was  obvious, 
that  a  contract  required  to  be  in  writing 
by  the  statute  of  frauds  was  not  good 
where  it  was  partly  in  writing  and  partly 
oral.  It  was  quite  another  question, 
whether,  in  Stead  v.  Dawbei',  10  A.  &  E. 
57,  where  the  demand  for  the  bones,  and 
the  tender  of  the  payment,  were  subse- 
quent to  May  24,  the  plaintiff  could  then 
have  sustained  an  action  on  the  original 
contract  for  their  non-delivery  on  "the 
20th  to  the  22nd  ; "  but  it  is  quite  ap- 
parent that,  differing  in  this  important 
respect  from  Cuff  v.  Penn,  1  M.  k  S.  21, 
where  the  action  was  on  the  original  con- 
tract, no  such  attempt  was  made  ;  but 
the  action,  in  effect,  in  Stead  v.  Dawber, 
10  A.  &  E.  57,  was  on  tlu;  original  writ- 
ten contract  as  essentially  varied  by  the 
subsequent  oral  contract,  and,  we  think 
without  any  possible  escape  from  so  hold- 
ing, the  court  properly  lield  that  the  con- 
tract declared  on  was  a  contract  within 
the  statute  of  frauds,  and  could  not  be 
proved,  as  to  any  essential  part  of  it,  by 
merely  oral  testimony  ;  "  for  to  allow  such 


632 


COMMENTARIES   ON   SALES. 


[book   IV. 


sale  of  the  sugars  mentioned  in  the  catalogue  was  to  proceed,  to 
the  company  assembled,  including  the  defendant.     The  paper  con- 


a  contract  to  be  proved  partly  by  writing, 
and  partly  by  oral  testiiuony,  would  let  in 
all  the  mischiefs  which  it  was  the  object 
of  the  statute  to  exclude."  Ibid.,  at  p.  64. 
Cuff  V.  Penn,  1  M.  &  S.  21,  which  was 
questioned  by  Parke,  J.,  in  Goss  r.  Lord 
Nugent,  5  B.  &  Ad.  at  p.  64,  and  which 
has  been  assumed  in  some  of  the  later 
cases,  and  by  some  of  the  text-writers,  to 
have  been  overruled  by  Stead  v.  Dawber, 
10  A.  &  E.  57,  is  not,  we  think,  at  all  af- 
fected by  this  latter  case.  The  distinction 
is  obvious  that  in  Cuff  v.  Penn,  1  M.  &  S. 
21,  the  action  was  held  sustainable  on  the 
original  written  contract ;  while,  quite  in 
accord  with  the  holding  in  that  case,  it 
■was  held  in  Stead  v.  Dawber,  10  A.  &  E. 
57,  that  an  action  on  a  contract  within 
the  statute  could  not  be  sustained  where 
the  contract  relied  on  to  sustain  such  ac- 
tion was  an  alleged  oral  variation  of  a 
written  contract ;  thus,  against  the  re- 
quirements of  the  statute,  the  object  be- 
ing to  establish  a  contract  which  was 
partly  in  writing  and  partly  merely  oral. 
See  the  report  of  Stead  v.  Dawber  in  2  Per. 
&  Dav.  447,  where  the  averment  by  the 
plaintiff  in  his  declaration  is  stated  as 
that  from  May  24  (the  contract  time  en- 
larged by  the  oral  agreement)  the  plaintiff 
had  been  always  willing  to  accept  and  pay 
for  the  bones  by  a  bill,  etc. ;  and  that  on 
May  24  the  defendants  were  requested  to 
deliver  the  bones.  This  shows  very  plainly 
that  the  plaintiff  was  relying,  under  the 
statute,  upon  the  orally  enlarged  contract, 
and  not  upon  the  original  written  con- 
tract. This,  we  submit,  is  the  test ;  if  the 
plaintiff  in  bringing  his  action  cannot  sus- 
tain it  under  the  original  written  con- 
tract, as  he  could  not  have  done  in  Stow- 
ell  V.  Robinson,  3  Bing.  N.  0.  928 ;  Goss 
V.  Lord  Nugent,  5  B.  &  Ad.  58,  or  Har- 
vey V.  Grabham,  5  A.  &  E.  61,  but  has  to 
resort  to  the  orally  altered  contract,  be- 
cause of  his  own  inability  to  relj'  on  the 
written  contract,  there,  under  the  stat- 
ute, he  must  fail.  But  where,  as  in  Cuff 
V.  Penn,  1  M.  &  S.  21  ;  Warren  v.  Stagg, 
cited  in  3  T.  R.  591,  and  possibly  as  in 
Thresh  v.  Kake,  1  Esp.  53,  where,  appar- 
ently (see  in  Stead  v.  Dawber,  10  A.  &  E. 
at  p.  62),  the  agreement  was  not  within 
the  statute  at  all,  the  plaintiff  is  in  a  posi- 
tion to  enforce  the  original  contract,  and 
the  defendant  is  driven,  as  a  defence,  to 
rely  on  an  alleged  oral  variation  of  the 
written  conti-act ;  there  the  original  con- 
tract, not  having  in  fact  been  rescinded  by 
the  oral  agreement,  remains  intact,  and  in 
seeking  to  enforce  the  written  contract  no 
attempt  is  made  by  the  plaintiff  to  con- 


travene the  statute  ;  and  he  is  no  more 
debarred  from  recovering  by  such  an  act 
as  giving  time  to  the  defendant  at  his  re- 
quest, than  he  would  have  been  had  the 
defendant,  instead  of  asking  for  time,  for 
instance,  to  receive  the  goods  sold  to  him, 
absolutely  refused  to  accept  them  at  the 
time  named  in  the  written  contract ;  there 
being  at  such  time  a  readiness  and  will-- 
ingness  on  the  part  of  the  plaintiff  to  de- 
liver them  according  to  the  terms  of  the 
contract  in  writing  under  the  statute. 

The  case  of  Marshall  v.  Lynn,  6  M.  & 
W.  109,  we  think,  properly  considered, 
does  not  contravene,  but  in  principle  af- 
firms, the  correctness  of  the  rule  we  have 
above  deduced.  The  head-note  of  the  case 
is  an  exact  affirmance  of  the  doctrine  we 
have  above  laid  down.  The  head-note  is  : 
"The  terms  of  a  written  contract  for  the 
sale  of  goods  falling  within  the  operation 
of  the  statute  of  frauds  cannot  be  varied 
or  altered  by  parol  ;  and  where  a  contract 
for  the  bargain  and  sale  of  goods  is  made, 
stating  a  time  for  the  delivery  of  them, 
an  agreement  to  substitute  another  day 
for  that  purpose  must,  in  order  to  be  valid, 
be  in  writing."  The  contract  in  Marshall 
V.  Lynn,  6  M.  &  W.  109,  was  in  writing, 
and  was  for  the  sale  and  shipment  to  the 
defendant,  in  the  plaintiff's  own  vessel,  on 
her  next  arrival  at  Wisbech,  of  a  cargo  of 
potatoes.  The  potatoes  were  not  shipped 
in  accordance  with  the  contract  on  the 
next  arrival  of  the  vessel  at  Wisbech  ;  but 
the  plaintiff,  in  an  action  for  the  non- 
acceptance  of  the  potatoes,  alleged  in  his 
declaration  a  new  oral  agreement  to  the 
effect  that  they  should  be  shipped  at  a 
later  voyage  of  the  vessel.  Not  having 
shipped  the  potatoes  under  the  terms  of 
the  written  contract,  the  plaintiff  consid- 
ered that  he  was  not  in  a  ]>osition  to  en- 
force that  contract,  and  he  therefore,  di- 
rectly against  the  statute,  undertook  in 
his  declaration  to  set  up  and  rely  on  an 
oral  variation  of  the  written  contract  for 
the  sale  of  goods,  which  by  the  statute  — 
the  other  statutory  evidence  of  the  con- 
tract being  wanting  —  was  re<iuired  to  be 
wholly  evidenced  by  writing.  Had  the 
plaintiff  declared  on  the  written  contract, 
and  averred  and  proved  a  readiness  and 
willingness  to  have  performed  it,  or  had 
he  shipped  the  potatoes  according  to  the 
terms  of  his  written  contract,  so  that  he 
could  have  clearly  brought  his  action  on 
the  written  contract,  and  not  on  a  con- 
tract under  the  statute,  alleged  in  his  dec- 
laration to  have  been  made  orally  in  part ; 
and  then,  on  the  arrival  of  the  vessel  at 
her  destination,  and  the  tendering  of  the 


PART   IX.]       THE   ESSENTIAL   REQUISITES   OP   THE   MEMORAMDUM      633 


taining  the  conditions  was  entitled  "  Conditions  of  Sugar  Sale, 
Sept.  20,  1805."     After  reading  it,  he  deposited  it  on  his  desk  un- 


cargo  to  the  defendant,  the  latter  had  re- 
quested and  obtained  a  deferring  of  the 
delivery  and  of  the  payment,  which  was 
to  be  "  cash  on  delivery,"  and  had  then 
subsequently  refused  to  receive  the  pota- 
toes at  all ;  as  the  plaintirt"  could  then  have 
declared,  as  was  done  in  the  first  count  of 
the  declaration  in  Cuff  v.  Fenn,  1  M.  &  S. 
21,  not  on  the  alleged  orally  varied  con- 
tract, but  on  the  written  contract,  the 
alleged  oral  variation  in  the  mode  of  per- 
forming the  contract  would  not  have  af- 
fected the  plaintiff's  rights,  as  the  statu- 
tory evideuc3  of  the  contract  he  was  in  a 
position  to  enforce  was  contained  in  the 
writing  ;  and,  for  a  defence,  the  defend- 
ant, unless  he  could  have  traversed  the 
plaintiff's  readiness  and  willingness,  would 
have  then  been  driven  to  a  reliance  on  the 
alleged  parol  variance  of  the  written  con- 
tract, which  alleged  variance  then,  as  was 
held  in  the  case  itself,  would,  under  the 
statute,  have  been  invalid  as  against  the 
written  contract  ;  it  remaining  intact. 
Marshall  v.  Lynn,  6  M.  &  W.  109,  was 
decided  on  the  assumption  that  Cuff  v. 
Penn,  1  M.  &  S.  21,  was  overruled  by 
Stead  V.  Dawber,  10  A.  &  E.  57,  which  we 
think  is  clear  was  not  the  case.  And  we 
think,  as  in  Cuff  v.  Penn,  1  M.  &  S.  21, 
with  respect  to  that  portion  of  the  bacon 
for  the  non-acceptance  of  which  the  action 
was  brought,  the  plaintiff  was  in  a  posi- 
tion to  rely  upon  the  original  written  con- 
tract, and  to  aver  a  readiness  and  will- 
ingness to  perform  his  contract  thereun- 
der, as  in  the  first  count  in  his  declaration 
he  substantially  did  ;  it  is  in  this  impor- 
tant respect  distinguishable  also  from  Mar- 
shall V.  Lynn,  6  M.  &  \V.  109,  where  the 
plaintiff  declared  upon  the  oral  variation 
of  the  written  contract  ;  the  principle 
stated  in  the  head-note  we  have  quoted 
above  from  Marshall  v.  Lynn,  6  M.  &  W. 
109,  being  generally  applicable,  and  as  ap- 
plicable to  Cuff  V.  Penn,  1  M.  &  S.  21,  as 
to  Stead  v.  Dawber,  10  A.  &  E.  57;  Mar- 
shall V.  Lynn,  6  M.  &  W.  109,  or  the  other 
cases  under  the  statute  which  we  have  ex- 
amined above.  But  it  is  clear,  notwith- 
standing the  view  of  Cuff  v.  Penn,  1  M.  & 
S.  21,  taken  in  Marshall  v.  Lynn,  6  M.  & 
W.  109,  that  had  the  plaintiff  in  this  lat- 
ter case  simply  declared  on  the  original 
agreement,  and  averred  a  readiness  and 
willingness  to  perform  it,  under  the  deci- 
sion not  only  in  Cuff  v.  Penn,  1  M.  &  S. 
21,  but  in  the  whole  mass  of  the  latest 
of  the  English  cases  on  the  subject,  the 
facts  in  the  case  would  not  have  inter- 
fered witli  his  sustaining  his  declaration, 
or  with  his  right  of  enforcing  the  original 


contract  under  it.  According  to  the  facts 
he  was  then  ready  and  willing  to  jjerform 
his  contract,  and  was  then  in  a  position 
to  legally  enforce  it.  And  if,  then,  at 
the  request  of  the  defendant,  and  to  ac- 
commodate the  latter,  the  time  for  the 
performance  of  the  contract  was  deferred  ; 
this  neither  rescinded  the  contract  nor  en- 
abled the  defendant  to  have  availed  him- 
self of  the  plea  that  it  was  varied  by  the 
subsequent  parol  agreement. 

The  case  of  Emmet  v.  Dewhurst,  3  Mac. 
&  G.  587,  596,  is  in  exact  accord  with 
these  principles,  namely,  that  an  agree- 
ment within  the  statute  of  frauds  must 
be  in  writing,  and  any  alteration  of  it 
must  also  be  in  writing ;  and  that  the 
party,  whether  plaintiff  or  defendant,  who, 
to  make  out  his  case,  is  driven  to  a  reliance 
on  the  allegation  and  proof  of  a  variation 
of  a  written  agreement,  or  to  the  formation 
of  a  new  agreement,  must  evidence  such 
variation  or  new  agreement  by  some  writ- 
ing to  satisfy  the  statute. 

Moore  v.  Campbell,  10  Ex.  323;  23 
L.  J.  N.  s.  Ex.  310,  holds  that  where  there 
has  been  a  written  agreement  for  the  de- 
livery of  goods  on  the  quay,  and  a  parol 
agreement  to  substitute  a  delivery  from 
the  warehouse  ;  as  this  parol  agreement, 
as  such,  is  invalid  under  the  statute,  it 
does  not  sustain  the  plea  that  the  original 
written  contract  was  rescinded  ;  yet  if  the 
vendee  had  accepted  and  received  the 
goods  in  the  warehouse,  to  be  delivered 
under  the  wiitten  contract,  instead  of  at 
the  quay,  this  would  have  been  a  good 
answer  by  way  of  accord  and  satisfac- 
tion. The  principle  of  this  case  is  that 
the  contract,  which,  as  such,  is  enforce- 
able, is  the  written  contract. 

Noble  V.  Ward,  L.  R.  1  Ex.  117,  af- 
firmed  on  appeal  in  the  Exchequer  Cham- 
ber, L.  R.  2  Ex.  135,  is  also  in  accord 
with  the  law  as  we  have  stated  it  above. 
There,  the  plaintiff  made  a  contract  in 
writing  with  the  defendant,  for  the  sale 
of  certain  goods  of  more  than  £10  in 
value,  at  specified  prices,  to  be  delivered 
within  a  specified  time.  Subsequently, 
and  before  the  time  for  delivery  had  ar- 
rived, a  parol  agreement  between  the 
parties  was  entered  into,  whereby  the 
time  for  delivery  was  extended.  In 
the  action  for  non-acceptance  of  the 
goods,  it  was  claimed  that  the  written 
agreement  had  been  rescinded  by  the 
parol  agreement,  and  that  under  the 
statute,  the  j)aroi  agreement  itself  could 
not  be  enforced;  and,  on  the  trial,  it 
was  so  held  by  Bramwell,  B.  But,  on 
motion  for  a   new   trial,  a   rule   therefor 


634 


COMMENTARIES   ON   SALES. 


[book  IV. 


der  the  catalogue,  on  which  catalogue  he  wrote  his  minutes  of 
the  bidders'  names  and  the  prices ;  but  the  two  papers  were  not 


was  made  absolute,  Bramwell,  B.,  deliver- 
ing the  judgment,  and  admitting  that  he 
had  been  wrong  on  the  tiial.  The  judg- 
ment, as  intimated  above,  was  on  appeal 
aflarmed  by  the  Exchequer  Chamber.  In 
this  case  as  in  Cuff  v.  Penn,  1  M.  &  S. 
21,  the  plaintiff  was  not  driven  to  rely- 
on  the  alleged  parol  variation  of  the 
written  contract,  the  goods  having  been 
tendered  by  him  within  the  time  named 
in  the  written  contract,  so  that  he  was 
in  a  position  to  allege  and  prove,  as  in 
effect  was  the  plaintiff  in  Cuff  v.  Penn, 
1  M.  &  S.  21,  a  readiness  and  willing- 
ness to  perform  his  contract  within  the 
time  agreed  in  the  written  contract.  The 
courts  held  that  as  it  was  not  the  in- 
tention of  the  parties  to  rescind  the 
written  contract  by  the  oral  agreement, 
and  as  this  latter  was  inoperative  to  vary 
the  written  contract,  the  written  agree- 
ment remained  in  force.  The  ratio  deci- 
dendi of  this  case  is  that  where  the 
written  agreement  is  not  rescinded  by 
the  oral  agreement,  as  the  oral  agree- 
ment is,  under  the  statute,  inoperative 
to  vary  the  written  agreement,  if  the 
plaintiff  is  in  a  position,  as  in  Noble  v. 
Ward,  L.  R.  1  Ex.  117  ;  L.  R.  2  Ex.  135, 
and  in  effect  in  Cuff;;.  Penn,  1  M.  &  S. 
21,  to  declare  on  the  original  agreement, 
and  to  bring  himself  within  it,  he  can  do 
so,  and  the  alleged  parol  variation  of  the 
written  agreement  is  invalid  as  a  defence 
to  the  action.  Willes,  J.,  in  tlie  Court 
of  Exchequer  Chamber,  said  :  "  It  is 
quite  in  accordance  with  the  cases  of  Doe 
V.  Courtenay,  11  Q.  B.  702,  and  Doe  v. 
Poole,  11  Q.  B.  713,  overruling  the  previ- 
ous decision  of  Doe  v.  Forwood,  3  Q.  B. 
67  (see  11  Q.  B.  723),  to  hold  that  where 
parties  enter  into  a  contract  which  would 
have  the  effect  of  rescinding  a  previous 
one,  but  which  cannot  operate  according 
to  their  intention,  the  new  contract  shall 
not  operate  to  affect  the  previously  exist- 
ing rights.  This  is  good  sense  and  sound 
reasoning,  on  which  a  jury  might  at  least 
hold  there  was  no  such  intention." 

Ogle  V.  Earl  Vane,  L.  R.  2  Q.  B.  275, 
involves  quite  a  different  point  from  that 
in  either  of  the  previous  cases  we  have 
examined.  There  the  defendant  by  written 
agreements  contracted  to  deliver  to  the 
plaintiff  500  tons  of  iron  in  all,  during  the 
quarters  ending,  respectively,  on  the  18th, 
22nd,  and  25th  July.  None  of  the  iron 
was  delivered  down  to  these  dates,  nor 
down  to  February  following  ;  the  plaintiff 
waiting  at  the  request  of  the  defendant 
until  then  ;  when,  losing  all  patience,  he 
went  into  the  market  and  purchased  on  a 


rising  market.  In  his  action  under  the 
contract,  damages  were  assessed  at  the 
market  [mce  in  February,  which  was  much 
higher  than  it  was  in  July.  It  was 
claimed  for  the  defendant  that  the  stat- 
ute of  frauds  applied,  and  that  as  the 
alleged  parol  agreement  was  invalid  to 
alter  the  original  contract,  the  damages 
should  have  been  assessed  as  at  the 
time  of  the  breach  of  the  contracts  in 
July.  But  the  court  held  that  there 
was  no  variation  of  the  original  con- 
tracts, and  that  while  what  was  done 
between  the  parties  amounted  to  a  post- 
ponement of  the  day  at  which  the  plain- 
tiff might  go  into  the  market,  and  at 
which  the  jury  might  calculate  the 
measure  of  damages  ;  yet  that  the  plain- 
tiff did  not  make  a  binding  parol  con- 
tract at  law,  because  he  never  contracted 
at  all  ;  and,  therefore,  although  at  the 
request  of  the  defendant  the  plaintiff  had 
the  right  to  defer  making  his  purchases, 
yet  this  was  not  a  matter  within  the 
statute  of  frauds. 

In  one  asj)ect,  Ogle  v.  Earl  Vane,  L.  R. 
2  Q.  B.  175,  is,  in  principle,  like  the 
much  discussed  case  of  Cuff  v.  Penn,  1 
M.  &  S.  21.  In  each  of  these  cases  the 
action  was  brought  under  the  original 
written  contract  ;  and  it  is  a  clear  princi- 
ple that,  unless  the  plaintiff  is  in  a  posi- 
tion to  sustain  his  action  under  the  written 
contract,  within  the  statute,  he  must  fail ; 
a  parol  agreement  being  invalid  to  vary  a 
contract  that  is  within  the  statute,  though 
it  may  be  Operative  to  rescind  it,  if  such 
is  the  intention  of  the  parties ;  and, 
though  it  is  competent  for  the  parties  to 
substitute  a  different  performance  of  the 
contract.  Ogle  v.  Earl  Vane,  L.  R.  2 
Q.  B.  275,  was,  on  appeal,  affirmed  by  the 
Exchequer  Chamber  (Ogle  v.  Earl  Vane, 
L.  R.  3  Q.  B.  272),  where  it  was  held 
that  there  was  evidence  from  which  the 
jury  might  infer  that  the  plaintiff's  delay 
was  at  the  defendant's  request  ;  that,  as 
the  evidence  went  to  show  not  a  new 
contract,  but  simply  a  forbearance  by  the 
plaintiff,  at  the  re(iuest  of  the  defendant, 
the  statute  of  frauds  did  not  a]iply,  and 
that  the  plaintiff  was  entitled  to  a  verdict 
for  the  full  measure  of  damages.  This 
again  is,  in  principle,  very  similar  to  the 
holding  in  Cuff  v.  Penn,  1  M.  &  S.  21  ; 
the  plaintiff  there  having  been  in  a  posi- 
tion to  enforce  his  contract,  but  voluntarily 
and  gratuitously  forbearing  at  the  request 
of  the  defendant. 

On  the  same  doctrine  that  parol  evi- 
dence cannot  be  admitted  to  vary  a  written 
contract  for  the  sale  of  goods  within  the 


PART  IX.]       THE    ESSENTIAL   REQUISITES   OF   THE  -MEMORANDUM.      635 


fastened  together  in  any  manner,  nor  was  there  any  reference  in 
the  papers  to  each  other.     The  court  held  that  there  was  no  suffi- 


statute,  it  was  contended  by  counsel  ( Ben- 
jamin, Q.  C,  and  Baylis),  in  Stewart  v. 
Eddowes  ;  Hudson  v.  Stewart,  L.  R.  9  C. 
P.  311,  that,  after  an  agreement  within 
the  statute  had  been  signed,  it  could  not 
be  altered,  as  it  was  claimed  that  that 
would  be  to  allow  oral  proof  of  a  change 
in  a  written  contract  under  the  statute. 
But  the  court  held  that,  until  the  signature 
was  to  an  instrument  which  was  an  agree- 
ment, there  was  no  contract  within  the 
statute,  and  hence  it  was  open  to  show  by 
parol  evidence  what  was  the  condition  of 
the  paper  when  the  parties  agreed  that  it 
should  be  a  contract  between  them.  In 
this  case,  after  the  signature,  there  were 
interlineations  in  the  writing  before  it  was 
finally  agreed  on,  and  it  was  held  to  be 
open  to  oral  proof  that  the  written  and 
signed  agreement  between  the  parties  was 
the  instrument  with  the  interlineations. 

The  Leather  Cloth  Co.  v.  Hieronimus, 
L.  R.  10  Q.  B.  140,  comes  within  the 
principle  of  Ogle  v.  Earl  Vane,  L.  R.  2  Q. 
B.  275  ;  L.  R.  3  Q.  B.  272,  and  of  that 
upon  which  Cuff  v.  Penn,  1  M.  &  S.  21,  is 
sustainable.  There,  in  The  Leather  Cloth 
Co.  V.  Hieronimus,  the  defendant's  son, 
H.  Jr.,  gave  a  verbal  order  in  London,  on 
February  18,  1870,  to  the  plaintiffs  to 
send  three  cases  of  leather  cloth  to  the 
defendant  at  Cologne.  The  plaintiffs  had 
been  in  the  habit  of  forwarding  goods  to 
the  defendant  through  H.  &  P.,  Rotter- 
dam, and  H.  Jr.,  being  informed  that  the 
port  of  Rotterdam  was  blocked  with  ice, 
directed  that  the  three  cases  should  be 
sent  through  Messrs.  G.,  Ostend.  When 
the  plaintiffs  had  executed  the  order  Rot- 
terdam was  again  open,  and  Messrs.  G. 
had  given  up  their  Ostend  route.  The 
plaintiffs,  therefore,  forwarded  the  three 
cases  through  H.  &  P.,  via  Rotterdam, 
and  on  the  same  day,  March  1,  they  for- 
warded the  invoice  from  the  plaintiffs  to 
the  defendant,  giving  the  price,  etc.,  with 
a  letter  in  which  they  said  :  "  Inclosed  we 
hand  you  invoice  of  three  cases  of  leather 
cloth.  This  order  came  through  Mr.  H., 
Jr.,  who  instructed  us  to  send  it  through 
Messrs.  G.,  Ostend,  but,  as  they  have 
given  up  that  route,  we  have  sent  it 
through  H.  &  P.,  Rotterdam,  as  before." 
The  defendant  received,  but  did  not 
answer,  this  letter,  but  gave  further 
orders  for  goods  to  the  plaintiffs,  which 
were  forwarded  via  Rotterdam.  The  ship 
by  which  the  three  cases  were  sent  was 
stranded  and  the  goods  damaged.  On 
June  28  the  plaintiffs  wrote  to  the  de- 
fendant, inclosing  their  statement  of  ac- 
count and  requesting    payment,    and   on 


July  5  defendant  wrote  to  plaintiffs, 
acknowledging  the  receipt  of  the  state- 
ment, and  saying  :  "  In  looking  over  your 
statement  1  find  you  have  charged  me 
for  goods  which  have  been  entirely  lost  in 
the  sunk  ship,  being  sent  ma  Rotterdam. 
You  state  in  your  letter  of  March  1  that 
Mr.  H.,  Jr.,  instructed  you  to  send  the 
goods  through  Messrs.  G.,  Ostend,  but  on 
account  of  their  having  given  up  that 
route  you  sent,  without  any  instructions, 
the  goods  via  Rotterdam."  Further  cor- 
respondence ensued,  and  defendant  hav- 
ing refused  to  pay  for  the  three  cases,  an 
action  was  brought,  and  the  above  facts 
and  correspondence  appeared  on  the  trial. 
The  judge  ruled  that  tliere  was  a  sufficient 
memorandum  in  writing,  signed  by  the 
defendant,  of  the  contract,  and  left  it  to 
the  jury  to  say,  from  the  silence  and  sub- 
sequent conduct  of  defendant,  whether  or 
not  there  had  been  an  assent  by  him 
to  the  change  of  route  from  Ostend  to 
Rotterdam  before  the  loss.  And  they 
found  in  the  affirmative,  and  a  verdict 
passed  for  the  plaintiffs.  On  motion  for 
a  new  trial  the  verdict  was  sustained,  the 
court  holding  that  there  was  a  sufficient 
memorandum  of  the  original  contract, 
and  that  there  was  evidence  from  which 
the  jury  might  find  that  the  defendant 
had  assented  to  the  substituted  performatice 
in  the  change  of  route,  ivhich  assent  need 
not  be  in  writing.  Blackbura,  J.,  in  his 
judgment,  in  answer  to  the  contention  of 
the  defendant  that  there  was  no  assent  in 
writing  to  the  alleged  substituted  con- 
tract, put  the  matter  on  precisely  the  basis 
on  which  we  have  been  able,  on  principle, 
to  reconcile  and  sustain  the  cases  of  Cufjf 
V.  Penn,  1  M.  &  S.  21  ;  Stead  v.  Dawber, 
10  A.  &  E.  57,  and  the  other  cases  we 
have  examined,  which  in  so  many  cases 
and  by  so  many  writers  have  been  deemed 
contradictory  and  irreconcilable,  thus  : 
"  The  plaintiffs  do  not  rely  on  a  substi- 
tuted contract,  but  on  the  original  con- 
tract ;  and  they  say  you,  the  defendant, 
on  being  told  of  the  substituted  delivery, 
did  not  object,  but,  by  your  conduct, 
assented  to  it.  I  cannot  see  why  the 
assent  to  a  substituted  mode  of  perform- 
ing one  of  the  terms  of  a  contract  need 
be  in  writing,  and  may  not  be  by  })arol, 
though  the  original  contract  must  have 
been  in  writing.  They  are  quite  different 
things,— the  proof  of  a  substituted  contract 
and  the  proof  of  a  ratification  or  ajiproval, 
after  performance,  of  the  substituted  mode 
of  performance.  I  tliiiik  there  was  evi- 
dence enough  for  inferring  this  ratification 
or  approval  by  the  defendant.''     Leather 


636 


COMMENTAEIES   ON   SALES, 


[book  IV. 


cient  memorandum  of  the  contract  between  the  parties,  signed  by 
the  party  to  be  charged,  to  satisfy  the  statute.^ 


Cloth  Co.  V.  Hieronimus,  L.  R.  10  Q.  B. 
at  p.  146.  This  is,  in  effect,  precisely 
the  argument  of  Lord  EUenborough  in 
Cuff  V.  Penn,  1  M.  &  S.  at  pp.  23,  26, 
et  seq. 

The  case  of  Tyers  v.  The  Rosedale,  &c. 
Iron  Co.,  L.  R.  8  Ex.  305,  reversed,  on 
appeal,  in  the  Exchequer  Chamber,  L.  R. 
30  Ex.  195,  is  another  highly  instructive 
case  on  this  important  subject.  In  this 
case  there  were  two  contracts  in  writing 
for  1000  tons  each  of  iron,  entered  into  in 
October  and  November,  1870,  respectively, 
for  delivery  by  the  defendants  to  the  plain- 
tiffs in  monthly  quantities  extending  over 
1871,  or  sooner  if  required;  payment  being 
by  plaintiffs'  four  months'  acceptance  from 
the  10th  of  the  month  following  delivery. 
The  case  is  very  like  that  of  Cuff  v.  Penn, 
1  M.  &  S.  21,  and  the  ultimate  decision  is 
an  affirmation  of  that  of  Cuff  v.  Penn. 
The  counts  in  the  declarations  in  the  two 
cases  were  very  similar.  The  first  and 
second  counts  in  Tyers  v.  The  Rosedale, 
&c.  Iron  Co.,  were  on  the  written  contract, 
as  was  also  the  third  count ;  but  in  this 
latter  there  was  an  averment  that,  under 
an  agreement  between  the  parties,  the  time 
for  the  delivery  had  been  enlarged.  In- 
stead of  166§-  tons  of  the  iron  having  been 
delivered  in  January,  1871,  only  101  tons 
were  then  delivered,  and  smaller  quanti- 
ties were  delivered  in  the  following  months; 
the  plaintiffs,  for  their  own  convenience, 
urging  the  defendants  to  withhold  the  de- 
liveries, which,  to  a  considerable  extent, 
was  done.  In  September,  October,  No- 
vember, and  December,  1871,  tlie  plain- 
tiffs pressed  for  full  deliveries  of  the  iron, 
and  small  quantities  were  sent  to  them, 
but  not  nearly  the  quantities  for  those 
months,  without  reference  to  the  previous 
short   quantities  delivered.     On   Dec.  5, 

^  Lord  EUenborough,  in  delivering  the 
judgment  of  the  court,  said  :  "  Supposing 
the  auctioneer  or  broker  for  sale  to  be  the 
agent  of  both  parties,  the  question  then 
is,  has  he  made  a  memorandum  of  the 
bargain  in  this  case  ?  —  and  it  appears  to 
me  he  has  not.  The  minute  made  on  the 
catalogue  of  sale,  which  is  not  annexed 
to  the  conditions  of  sale,  nor  has  any 
reference  thereto  by  context  or  the  like,  is 
a  mere  memorandum  of  the  name  of  a 
person,  whom,  perhaps,  we  maj'.  intend 
to  be  the  purchaser,  and  of  the  quan- 
tity and  price  of  the  goods,  which  we 
may,  perhaps,  on  the  foot  of  such  memo- 
randum, also  intend  to  have  been  sold  to 
the  person  so  named  in  the  catalogue. 
But  in  treating  it  as  such  memorandum 


the  plaintiffs  required  the  balance  of  the 
2000  tons  of  iron  to  be  delivered  that 
month,  and,  on  Dec.  7,  they  further  noti- 
fied the  defendants  to  deliver  the  balance, 
1280  tons;  but  the  plaintiffs  refused  to  de- 
liver any  more  than  the  December  portion, 
the  one-twelfth  of  the  2000  tons.  In  an 
action  for  the  non-deliveiy  of  the  balance 
of  the  iron,  before  Blackburn,  J.,  without 
a  jury,  it  was  ruled  that  the  effect  of  the 
different  postponements  at  the  request  of 
the  plaintiffs  and  by  the  consent  of  the 
defendants,  was  not  to  put  an  end  to  the 
contract,  but  only  to  postpone  the  time 
for  the  delivery,  and  that,  consequently, 
there  was  a  breach  of  contract  in  refusing 
to  deliver  the  iron.  The  majority  of  the 
court  (Kelly,  C.  B.,  and  Pigott,  B.,  Mar- 
tin, B.,  dissenting),  improperly  treating 
Cuff  V.  Penn,  1  M.  &  S.  21,  as  having  been 
overruled  by  Moore  v.  Campbell,  10  Ex. 
323  ;  Goss  v.  Lord  Nugent,  5  B.  &  Ad. 
58  ;  Stead  v.  Dawber,  10  A.  &  E.  57,  and 
Marshall  v.  Lynn,  6  M.  &  W.  109,  held, 
in  effect,  the  unsound  doctrine  that  the 
parol  agreement  had  altered  the  written 
agreement,  and  that  the  plaintiffs  could  not 
recover,  and  made  absolute  a  rule  to  enter 
the  verdict  for  the  defendants.  But  on 
appeal  to  the  Court  of  Exchequer  Cham- 
ber (L.  R.  10  Ex.  195),  the  decision,  as 
intimated  above,  was  reversed.  Cockbum, 
C.  J.,  said:  "There  was  a  contract  to 
purchase  2000  tons  of  iron  to  be  delivered 
in  monthly  instalments.  It  did  not  suit 
the  purchasers  to  take  the  iron  in  the  in- 
stalments originally  contemplated  by  the 
parties,  and  they  proposed  to  the  sellers 
to  postpone  from  time  to  time  the  deliv- 
ery of  the  monthly  instalments.  Now  it 
would  have  been  perfectly  competent  to 
the  defendants  to  say,  '  We  will  not  ac- 
quiesce in  that  proposal  of  yours.     You 

throughout,  we  must  intend  also  (contrary 
to  the  fact)  that  the  goods  were  sold  for 
ready  money,  and  unattended  by  the  cir- 
cumstances specified  in  the  conditions  of 
sale.  And  the  conditions  of  sale,  though, 
as  unsigned,  they  cannot  be  evidence  of 
tlie  bargain  itself,  are  yet  capable  of  being 
given  in  evidence,  and,  accordingly,  have 
been  so,  as  a  part  of  the  transaction  be- 
tween the  parties,  and  in  order  to  show 
that  it  was  on  those  conditions  that  the 
goods  were  sold.  I  am  of  opinion,  there- 
fore, that  the  mere  writing  on  the  cata- 
logue, not  being  by  any  reference  in- 
corporated with  the  conditions  of  sale,  is 
not  a  memorandum  of  a  bargain  under 
those  conditions  of  sale."  Hinde  v. 
Whitehouse,  7  East,  569. 


PART   IX.]      THE   ESSENTIAL  REQUISITES  OP  THE  MEMORANDUM.      637 


The  case  of  Boydell  v.  Drummond^  was  similarly  decided.     In 
this  case  a  prospectus  was  issued  in  1786,  and  another  in  1787,  of 


are  bound  to  take  the  iron  month  by 
month,  and  you  must  so  take  it  or  con- 
sider the  contract  at  an  end.'  Instead  of 
doing  that,  the  defendants,  as  I  read  the 
letters,  acquiesced,  not  in  holding  the  con- 
tract at  an  end,  but  in  postponing  the 
period  of  delivery."  Blackburn,  J.,  thus 
met  the  technical  difficulty,  that  the  plain- 
tifl's  were  bound  to  show  that  they  were 
ready  and  willing  to  receive  the  iron  when 
it  ought  to  have  been  delivered:  "The 
answer  is  :  '  We  were  ready  to  receive  the 
iron  when  you  were  ready  to  deliver  it, 
but  we  requested  you  not  to  require  us  to 
receive  it,  and  you  consented.'  "  By  the 
nature  of  the  pleadings,  the  effect  was 
that  the  plaintiffs  were  seeking  to  enforce 
a  contract  in  writing  under  the  17th  sec- 
tion of  the  statute,  for  the  sale  of  goods, 
and  the  defendants  were  seeking  to  avoid 
such  statutory  written  agreement  by  the 
contention,  not  that  the  parol  agreement 
had  rescinded  the  written  contract,  as  it 
may  do,  but  that  the  written  agreement 
had  been  effectually  varied  by  the  parol 
agreement,  so  as  to  change  the  nature  of 
the  contract,  and  yet,  that  the  contract  as 
extended  by  the  parol  agreement,  could 
not  be  enforced.  The  plaintiH's'  position, 
and  the  holding  of  the  court,  in  effect, 
were  that  the  written  agreement  had  not 
been  rescinded  nor  varied  by  the  consent 
to  defer  the  deliveries,  and  that,  until 
performed  or  rescinded,  it  remained  a  sub- 
sisting agreement,  which  could  be  enforced 
by  either  of  the  parties  to  it.  The  court 
also  held  that,  had  the}'  requested  it,  the 
defendants  would  have  had  a  reasonable 
time  to  deliver  the  iron  after  the  balance 
was  demanded  in  December ;  but  their 
absolute  refusal  to  deliver  at  all  entitled 
the  plaintiffs  to  recover  damages  in  the 
existing  action. 

The  later  case  of  Hickman  v.  Haynes, 
L.  R.  10  C.  P.  598,  is  a  still  further  affir- 
mation of  the  principles  laid  down  by 
Lord  Ellenborough  in  Cuff  v.  Penn,  1  M. 
&  S.  21,  to  the  effect  that  where  there  is 
simply  a  forbearance  to  deliver  the  goods 
at  the  request  of  the  other,  this  is  not  a 
rescission  of  the  written  contract,  nor  a 
.substitution  of  a  new  contract  for  the  old, 
but  is  merely  a  forbearance  to  enforce  the 
old  contract,  which  still  remains  intact 
and  capable  of  being  enforced.  In  Hick- 
man V.  Haynes,  L.  R.  10  C.  P.  598,  by  a 
written  contract  the  plaintiff  agreed  to 
deliver,  and  the  defendants  to  accept,  in 
the  month  of  June,  a  certain  quantity  of 
iron  of  greater  value  than  £10.     On  June 


2,  and  again  in  the  middle  of  June,  one 
of  the  defendants  saw  the  plaintiff,  and 
verbally  requested  him  to  allow  the  de- 
livery of  the  iron  to  stand  over,  and  the 
plaintiff  verbally  consented  to  his  request. 
On  Aug.  1,  the  plaintiff  pressed  the  de- 
fendants to  take  delivery,  and  the  defend- 
ants, after  some  correspondence,  wrote  on 
Aug.  9  asking  for  further  time.  The 
plaintiff  again  waited,  but  without  result. 
On  Oct.  20,  the  plaintiff  brought  his  ac- 
tion for  non-acceptance  of  the  goods  in 
accordance  with  the  terms  of  the  written 
contract.  It  was  contended  by  the  de- 
fendants that  by  reason  of  the  arrange- 
ment to  postpone  delivery  and  acceptance 
made  before  any  breach  of  the  contract, 
the  plaintiff  could  not  recover  upon  the 
original  contract,  there  never  having  been 
readiness  and  willingness  to  deliver  or  any 
tender  of  delivery  on  the  plaintiff's  part 
under  such  contract ;  and  that  the  plain- 
tiff could  not  rely  on  any  new  or  substi- 
tuted contract  to  accept  at  a  later  date, 
such  contract  being  verbal  only.  The 
court  held  that  the  true  effect  of  what  took 
place  between  the  parties  being  that  the 
plaintiff  voluntarily  withheld  delivery  at 
the  request  of  the  defendants,  no  new  con- 
tract being  substituted  for  the  original 
written  contract,  the  plaintiff  was  entitled 
to  maintain  his  action  ;  and  that  the  dam- 
ages must  be  estimated  according  to  the 
market  price  of  iron  at  a  reasonable  time 
after  the  last  request  of  the  defendants  to 
withhold  delivery. 

The  law  in  the  matter,  on  one  branch 
of  it,  is  well  summarized  by  Brett,  J.,  in 
delivering  the  judgment  in  the  latest  Eng- 
lish case  on  the  subject,  of  Plevins  v. 
Downing,  1  C.  P.  Div.  220,  224.  This 
was  an  action  for  non-acceptance  of  iron 
pursuant  to  contract,  the  declaration  being 
on  the  original  written  contract.  The 
plea,  among  others,  was  that  the  }ilaintiffs 
were  not  ready  and  willing  to  deliver  the 
iron  according  to  the  terms  of  the  con- 
tract. The  bought-note,  signed  by  the 
defendant,  dated  June  15,  1874,  on  which 
the  action  was  founded,  was  as  follows  : 
"Bought  of  Messrs.  Plevins  &  Co.,  100 
tons  of  gray  forge  pig  iron  at  75s.  per  ton, 
delivered  to  my  works.  Payment  in  cash, 
less  2|  per  cent,  discount,  on  the  10th  of 
each  month  following  deliver}'.  Delivery, 
25  tons  at  once,  and  75  tons  in  July  next." 
The  25  tons  were  delivered  immediately, 
and  50  tons  more  in  July.  There  was  no 
evidence  of  any  request  by  the  defendant 
to  the  plaintiffs,  made  before  the  end  of 


1  11  East,  142. 


638 


COMMENTARIES   ON    SALES. 


[book  IV. 


a  series  of  prints  from  scenes  of  some  of  Shakespeare's  plays.   The 
defendant  subscribed  for  these  plates.     Printed  copies  of  the  two 


July,  to  withhold  delivery  of  the  remain- 
ing 25  tous  till  after  the  end  of  July. 
But  there  was  evidence  of  a  conversa- 
tion between  the  defendant  and  the 
plaintiffs'  manager  in  October,  which  the 
court  treated  as  a  verbal  request  by  the 
defendant  to  send  him  the  remaining  25 
tons  then.  And  the  plaintiffs  did,  in  Oc- 
tober, forward  25  tons  addressed  tn  the 
defendant,  but  not  at  his  works  ;  and  the 
defendant,  on  being  informed  by  letter 
that  the  iron  had  been  despatched,  de- 
clined to  receive  it.  On  the  trial,  before 
Quain,  J.,  a  verdict  was  entered  for  the 
defendant,  leave  being  reserved  to  enter 
the  verdict  for  the  plaintiffs  if  the  court 
should  be  of  opinion  that  there  was  any 
evidence  of  a  delivery  and  acceptance 
within  the  contract. 

The  court  sustained  the  verdict,  on  a 
principle  which,  witli  that  governing  the 
decisions  in  Tyers  v.  Rosedale,  &c.  Iron 
Co.,  L.  R.  8  Ex.  305  ;  L.  R.  10  Ex.  195  ; 
Leather  Cloth  Co.  v.  Hieronimus,  L.  R. 
10  Q.  B.  140;  Ogle  v.  Lord  Vane,  L.  R. 
2  Q.  B.  275  ;  L.  R.  3  Q.  B.  272  ;  Hick- 
man V.  Haynes,  L.  R.  10  C.  P.  598,  ex- 
amined supra,  sustains  the  decision  in 
Cuff  V.  Penn,  1  M.  &  S.  21,  where  the 
action  was  on  the  original  written  con- 
tract, with,  in  effect,  an  averment  of  readi- 
ness and  willingness  to  perform  it  ;  and, 
on  principle,  only  sustains  such  cases  as 
Stead  V.  Dawber,  10  A.  &  E.  57,  and 
Marshall  v.  Lynn,  6  M.  &  W.  109,  on 
the  ground  that  in  these  cases  the  actions 
were,  not  on  the  original  contract,  with  an 
averment  of  readiness  and  willingness  to 
perform  it,  but  on  the  written  contract, 
with  an  alleged  variation  of  the  contract 
by  parol.  The  principle,  as  we  have  be- 
fore intimated,  being,  that  where  eitlier 
the  plaintiff  or  defendant  is  compelled,  in 
order  to  sustain  his  case,  to  rely,  not  on 
the  original  contract,  with  an  averment 
of  readiness  and  willingness  to  perform  it, 
but  on  a  substituted  parol  contract,  with 
an  averment  of  readiness  and  willingness 
to  perform  it,  there  he  must  fail,  as  the 
party  must  stand  or  fall  by  his  right  to 
enforce  the  written  contract,  on  a  breach, 
by  the  other  party,  of  that  contract ;  mere 
forbearance,  however,  by  either  party, 
neither  working  a  rescission  of  the  con- 
tract, nor  a  variation  of  it. 

Brett,  J.,  in  Plevins  v.  Downing,  1 
C.  P.  Div.  at  p.  225,  said  :  "  It  was  ar- 
gued for  the  plaintiffs  that  they  could 
maintain  the  action  upon  the  original 
contract ;  that  they  were  not  driven  to 


rely  upon  an  alteration  of  it  as  to  the  pe- 
riod of  delivery,  or  upon  a  new  contract ; 
that  the  request  of  the  defendant,  acceded 
to  by  the  plaintiff's,  was  only  an  arrange- 
ment as  to  a  mode  of  performing  the  origi- 
nal contract.  It  was  further  argued  that 
if  there  was  a  new  contract,  there  was  evi- 
dence of  a  delivery  under  it,  which  entitled 
the  plaintiffs  to  sue  for  the  price  of  goods 
sold  and  delivered.  It  seems  to  us,  how- 
ever, that  the  verdict  was  rightly  directed 
to  be  entered  for  the  defendant.  It  is 
true  that  a  distinction  has  been  pointed 
out  and  recognized  between  an  alteration 
of  the  original  contract  in  such  cases,  and 
an  arrangement  as  to  the  mode  of  ])erform- 
ing  it.  If  the  parties  have  attempted  to  do 
the  first  by  words  only,  the  court  cannot 
give  effect,  in  favor  of  either,  to  such  at- 
tempt ;  if  the  parties  make  an  arrange- 
ment as  to  the  second,  though  such  ar- 
rangement be  only  made  by  words,  it  can 
be  enforced.  The  question  is,  what  is  the 
test,  in  such  an  action  as  the  present, 
whether  the  case  is  within  the  one  rule 
or  the  other. 

"  Where  the  vendor,  being  ready  to 
deliver  within  the  agreed  time,  is  shown 
to  have  withheld  his  offer  to  deliver  till 
after  the  agreed  time  in  consequence  of  a 
request  to  him  to  do  so  made  by  the  ven- 
dee before  the  expiration  of  the  agreed 
time,  and  where  after  the  expiration  of 
the  agreed  time,  and  within  a  reasonable 
time,  the  vendor  proposes  to  deliver,  and 
the  vendee  refuses  to  accept,  the  vendor 
can  recover  damages.  He  can  properly 
aver  and  prove  that  he  was  ready  and 
willing  to  deliver  according  to  the  terms 
of  the  original  contract.  He  shows  that 
he  was  so,  but  that  he  did  not  offer  to 
deliver  within  the  agreed  time  because  he 
was  within  such  time  requested  by  the 
vendee  not  to  do  so.  In  such  case  it  is 
said  that  the  original  contract  is  unaltered, 
and  that  the  arrangement  has  reference 
only  to  the  mode  of  performing  it.  [This, 
we  think,  is  entirely  correct.  ]  But,  if  the 
alteration  of  the  period  of  delivery  were 
made  at  the  request  of  the  vendor,  though 
such  request  were  made  during  the  agreed 
period  for  delivery,  so  that  the  vendor 
would  be  obliged,  if  he  sued  for  a  non- 
acceptance  of  an  offer  to  deliver  after  the 
agreed  period,  to  rely  upon  the  as.sent  of 
the  vendee  to  his  request,  he  could  not 
aver  and  prove  that  he  was  ready  and  wil- 
ling to  deliver  according  to  the  terras  of 
the  original  contract  (a).  The  statement 
shows  that  lie  was  not.     He  would   be 


(a)  As  the  alleged  assent  in  Plevins  v.     ber,  after  the  breach  of  the  contract  in 
Downing,  1  C.  P.  Div.  220,  was  in  Octo-     July  by  the  plaintiffs,  and  a  right  of  action 


PART  IX.]      THE   ESSENTIAL   REQUISITES   OP  THE   MEMORANDUM.      639 


prospectuses,  containing  the  conditions  on  which  the  prints  were  to 
be  furnished  the  subscribers,  were  lying  about  the  plaintiff's  shop  for 


driven  to  rely  on  the  assent  of  the  vendee 
to  a  substituted  time  of  delivery,  that  is 
to  say,  to  an  altered  contract  or  a  new 
contract.  This  he  cannot  do  so  as  to 
enforce  his  claim.  This  seems  to  be  the 
result  of  the  cases  which  are  summed  up 
in  Hickman  v.  Haynes,  L.  R.  10  C.  P. 
598.  [We  doubt  this  very  ranch.  See 
our  comments  below.]  In  the  present  case, 
the  plaintiffs  cannot  iirove  that  they  were 
ready  and  willing  to  deliver  the  disputed 
iron  in  July.  They  cannot  say  that,  being 
so  ready,  they  withheld  an  otter  to  deliver 
in  July  at  the  request  of  the  defendant 
made  in  July.  The  day  after  the  end  of 
July  they  could  not  have  insisted  on  an 
acceptance  of  iron  then  offered  to  the  de- 
fendant. They  attempt  to  enforce  an  offer 
of  delivery  made  in  October  by  means  of 
an  alleged  request  then  made  by  the  de- 
fendant to  forward  iron  assented  to  by 
them.  Inasmuch  as  they  cannot  rely  upon 
their  readiness  and  willingness  to  deliver 
according  to  the  terms  of  the  original  con- 
tract, because  they  were  not  so  ready  and 
willing,  they  are  logically  driven  to  rely 
upon  the  subsequent  request  of  the  defend- 
ant, either  as  a  proposed  alteration  of  a 
term  of  the  original  contract,  or  as  a  re- 
quest upon  which  to  hang  a  new  contract 
to  accept.  But,  as  the  request  was  merely 
verbal,  the  undertaking  sought  to  be 
founded  on  it  cannot  be  enforced." 

We  think  that,  on  the  facts  of  the  cases 
and  the  pleadings,  Plevins  v.  Downing, 
1  C.  P.  Div.  220  ;  Hickman  v.  Havnes, 
Ii.  R.  10  C.  P.  598  ;  0£;le  v.  Lord  A^ane, 
L.  R.  2  Q.  B.  275  ;  L.  R.  3  Q.  B.  272  ; 
Leather  Cloth  Co.  v.  Hieronimus,  L.  R. 
10  Q.  B.  140  ;  Tyers  v.  Rosedale,  &c.  Iron 
Co.,  L.  R.  8  Ex.  305  ;  L.  R.  10  Ex.  195, 
and  Cuff  v.  Penn,  1  M.  &  S.  21,  were  all 
well  decided  ;  but  we  think  that  neither 
the  result  of  the  cases  summed  up  in  Hick- 
man V.  Haynes,  L.  R.  10  C.  P.  598,  nor 

for  such  breach  had  vested  in  the  defend- 
ant, this  is,  to  that  extent,  obiter  dicfAtm. 
Considering  what  we  think  is  the  well- 
decided  case  of  Tyers  v.  The  Rosedale,  &c. 
Iron  Co.,  L.  R.  10  Ex.  195,  see  per  Black- 
bum,  J.,  at  p.  197  ;  where,  it  is  true,  the 
delay  in  the  delivery  was  at  the  request  of 
the  vendee,  but  as  he  was  the  plaintiff  in 
that  case,  seeking  to  enforce  the  original 
■written  contract,  this  is  not  material  ;  it 
would  seem  to  us  that  where,  as  in  Tj'ers 
V.  The  Rosedale,  &c.  Iron  Co.,  there  was 
a  substantial,  though  not  an  actual,  "  read- 
iness end  willingness,"  as  the  delay  there 
was  largely  caused  by,  and  at  the  request 
of,  the  plaintiff,  and  yet  it  was  held  that 
he  was  still  in  a  position  to  enforce  the 


the  decision  in  that  case,  warrants  the 
conclusion  of  the  court  in  Plevins  v. 
Downing,  1  C.  P.  Div.  220,  that  "if  the 
alteration  of  the  period  of  delivery  were 
made  at  the  request  of  the  vendor,  though 
such  request  were  made  during  the  agreed 
period  for  delivery,  so  that  the  vendor 
would  be  obliged,  if  he  sued  for  a  non- 
acceptance  of  an  offer  to  deliver  after  the 
agreed  period,  to  rely  upon  the  assent  of 
the  vendee  to  his  request,  he  could  not 
aver  and  prove  that  he  was  ready  and 
willing  to  deliver  according  to  the  terms 
of  the  original  contract." 

Among  the  cases  summed  up  and  rec- 
ognized as  law,  in  Hickman  v.  Haynes, 
L.  R.  10  C.  P.  598,  604-606,  were  Leather 
Cloth  Co.  V.  Hieronymus,  L.  R.  10  Q.  B. 
140,  and  Tyers  v.  Rosedale,  &c.  Iron  Co., 
L.  R.  10  Ex.  195.  In  the  former  of  these 
cases  there  was  certainly  no  request  of  the 
vendee  for  the  substituted  mode  of  the  per- 
foiTnance  of  the  contract.  The  most  that 
could  be  said  there  was,  that  the  vendee 
assented  to  the  substituted  mode  adopted 
by  the  vendor  without  his  having  even 
asked  the  vendee  for  his  consent ;  the 
silence  of  the  vendee,  after  having  been 
advised  of  the  .substituted  mode  of  per- 
formance of  the  contract,  having  been 
treated  as  an  assent  to  it.  Tyers  v.  Rose- 
dale, &c.  Iron  Co.,  L.  R.  lo"  Ex.  195,  is, 
we  think,  a  still  more  emphatic  refuta- 
tion of  the  extra-judicial  conclusion  of  the 
court  in  Plevins  v.  Downing,  1  C.  P.  Div. 
220,  225  et  seq.,  that  where  the  delay  in 
the  period  of  delivery  is  made  at  the  re- 
quest of  the  vendor,  there  the  vendor  can- 
not recover  on  the  original  contract,  and, 
therefore,  cannot  recover  at  all,  because 
he  could  not  aver  and  prove  a  readiness 
and  willingness  to  deliver  according  to  the 
terms  of  the  original  contract. 

We  have  already  referred  to  the  fact 
above,  that  in  Tyers  v.  Rosedale,  &c.  Iron 

original  contract  ;  so,  on  principle,  where 
there  is,  on  the  part  of  the  vendor  only, 
even  such  a  readiness  and  willingness  as 
was  held  sufficient  on  the  part  of  the  ven- 
dee in  Tyers  v.  The  Rosedale,  &c.  Iron 
Co.,  and  the  delay  in  the  delivery  is  as- 
sented to  by  the  vendee,  at  the  re(iuest  of 
the  vendor,  during  the  period  while  the 
original  contract  remains  intact ;  there 
there  has  been  no  rescission  or  variation  of 
the  original  contract,  but  a  mere  forbear- 
ance in  its  performance,  and  the  vendor  in 
such  case,  on  the  authority,  on  principle, 
of  Tyers  v.  The  Rosedale,  &c.  Iron  Co., 
L.  R.  10  Ex.  195,  will  be  able  to  enforce 
the  contract. 


640 


COMMENTARIES   ON   SALES. 


fBOOK   IV. 


public  inspection  at  the  time  of  the  defendant's  subscription,  and 
the  general  practice  was  to  deliver   them  to  subscribers  at  the 


Co.  the  requests  for  the  delay  were  made 
by  the  vendee,  and  that,  as  in  that  case, 
it  was  the  vendee  who  was  seeking  to  en- 
force the  contract  after  the  delay,  his  po- 
sition was  precisely  the  same  as  though 
the  request  for  the  delay  had  been  made 
by  the  vendor,  and  it  was  he  who  was 
seeking  to  enforce  the  original  contract. 
This  is  entirely  clear.  Then,  in  Tyers  v. 
Rosedale,  &c.  Iron  Co.  (see  the  first  re- 
port L.  R.  8  Ex.  305),  where  the  re- 
quests of  the  vendee  for  delay  were  con- 
tinuous during  nine  of  the  twelve  months 
in  which  the  iron  was  to  be  delivered 
under  the  contract,  precisely  the  position 
was  there  taken  by  counsel  for  the  defend- 
ant (the  vendor)  (see  L.  R.  10  Ex.  197) 
as  was  taken  by  the  Common  Pleas  Divi- 
sion in  Plevins  v.  Downing,  1  C.  P.  Div. 
220,  225  et  seq.,  that  "the  plaintiffs  were 
bound  to  show  that  they  were  ready  and 
willing  to  receive  the  iron  when  it  ought 
to  have  been  delivered."  But  Blackburn, 
J.'s,  reply  to  this  was  :  "The  answer  is, 
'  We  were  ready  to  receive  the  iron  when 
you  were  ready  to  deliver  it ;  but  we  re- 
quested you  not  to  require  us  to  receive 
it,  and  you  consented.'  "  And,  on  the 
principle  that  such  a  readiness  and  will- 
ingness would  sustain  an  averment  of 
readiness  and  willingness  in  the  declara- 
tion to  receive  the  goods  under  the  origi- 
nal written  contract,  the  case  of  Tyers  v. 
Rosedale,  &c.  Iron  Co.,  L.  R.  8  Ex.  305, 
L.  R.  10  Ex.  195,  was  decided.  That 
case,  therefore,  which  has  never  been  ques- 
tioned in  Hickman  v.  Haynes,  L.  R.  10 
C.  P.  598  ;  Plevins  v.  Downing,  1  C.  P. 
Div.  220,  or,  we  think,  elsewhere,  and 
which,  we  think,  was  unquestionably  well 
decided,  shows,  with  the  other  cases  we 
have  cited,  supra,  that  where  the  action  is 
on  the  original  written  contract,  with  an 
averment  of  readiness  and  willingness  to 
perform  it,  whether  the  action  be  by  the 
vendor  or  vendee,  and  whether  the  request 
for  the  delay  in  the  performance  be  made 
by  the  vendor  or  vendee  during  the  period 
when  the  contract  remains  intact  {a),  and 
the  vendor  or  vendee,  as  the  case  may  be, 
is  able  to  sliow  such  a  readiness  and  will- 
ingness—  the  vendor  to  deliver,  or  the 
vendee  to  receive — ^as  was  shown  by  the 
vendee,  in  Tyers  v.  Rosedale,  &c.  Iron 
Co.,  to  receive  the  goods  under  the  origi- 
nal contract,  there  the  vendor  or  vendee 
may  maintain  his  action  under  the  origi- 
nal contract.     This  is  clearly  the  result  of 

(a)  But  see,  in  Hickman  v.  Haynes, 
L.  _R.  10  C.  P.  at  p.  606,  where  the  court, 
citing  Ogle  v.  Lord  Vane,  and  Tyers  v. 


Tyers  v.  Rosedale,  &c.  Iron  Co.,  L.  R.  8 
Ex.  305,  L.  R.  10  Ex.  195,  connected  with 
Leather  Cloth  Co.  v.  Hieronimus,  L.  R. 
10  Q.  B.  140,  and  the  other  cases. 

The  deduction,  therefore,  would  clearly 
be,  that,  under  a  contract  like  that  in 
Tyers  v.  Rosedale  Iron  Co.,  if  the  vendor 
found  it  inconvenient  for  him  to  deliver 
the  quantities  of  iron  under  the  contract, 
at  the  respective  days  named  in  the  con- 
tract ;  and,  at  his  request,  the  vendee  con- 
sented to  defer  the  delivery,  and  there  was, 
in  fact,  as  great  a  readiness  and  willing- 
ness on  the  part  of  the  vendor  to  deliver, 
as  there  was,  in  Tyers  v.  Rosedale,  &c. 
Iron  Co.,  on  the  part  of  the  vendee  to  re- 
ceive the  iron;  in  an  action  by  the  vendor, 
under  the  original  contract,  against  the 
vendee,  for  the  subsequent  non-acceptance 
of  the  iron  as  a  substituted  performance 
of  the  contract,  if  the  defendant  were  to 
claim,  as  was,  in  effect,  claimed  in  Tyers 
V.  Rosedale,  &c.  Iron  Co.,  L.  R.  10  Ex.  at 
p.  197,  that  "the  plaintiff  was  bound  to 
show  that  he  was  ready  and  willing  to  de- 
liver the  iron  when  it  ouglit  to  have  been 
received,"  the  plaintiff  could  reply,  as  did 
Blackburn,  J.,  there,  "The  answer  is,  'I 
was  ready  to  deliver  the  iron  when  you 
were  ready  to  receive  it ;  but  I  requested 
you  not  to  reiiuire  me  to  deliver  it,  and 
you  consented.'  " 

This,  we  think,  answers  the  unsound 
extra-judicial  reasoning  of  the  court  in 
Plevins  v.  Downing,  1  C.  P.  Div.,  at  p. 
225  ;  the  utter  unsoundness  of  which  we 
think  is  made  palpable  by  "the  result  of 
the  cases  which  are  summed  up  in  Hick- 
man V.  Haynes,"  L.  R.,  10  C.  P.,  598; 
the  cases,  particularly,  of  Leather  Cloth 
Co.  V.  Hieronimus,  L.  R.  10  Q.  W.  140, 
and  Tyers  v,  Rosedale  &  Fenvhill  Iron 
Co.,  L.  R.  8  Ex.  305  ;  L.  R.  10  Ex.  195, 
being  directly  opposed  to  the  unsound  de- 
duction of  the  Common  Pleas  Division  in 
Plevins  v.  Downing,  1  C.  P.  Div.  220, 
225,  ct  seq. 

We  think  we  have  already  made  this 
clear  by  our  reference  to  those  cases,  but  a 
fuller  reference  to  the  latter  of  them 
makes  this  still  more  apparent.  The  very 
egregious  error  of  the  Common  Pleas 
Division  on  this  important  question  seems 
to  make  such  fuller  reference  to  Tyers  v. 
Rosedale,  &c.  Iron  Co.,  8  Ex.,  305  ;  L. 
R.  10  Ex.  195,  imperative  on  us.  In  the 
latter  of  these  reports,  the  dissenting 
judgment  of  Martin,  B.,  in  the  former  of 


Rosedale,   &c.    Iron   Co., 
make  this  limitation. 


does  not  even 


PART   IX.]      THE   ESSENTIAL   REQUISITES   OP   THE   MEMORANDUM.      641 


time  of  their  subscription.     But  the  book  in  which  the  defendant 
subscribed  his  name  had  only  for  its  title, "  Shakespeare  Subscrib- 


them,  is  expressly  approved,  in  the  plainest 
and  strongest  manner  possible  ;  Cockburn, 
C.  J.,  saying  :  "  I  tliink  that  the  true 
view  of  the  case  was  taken  by  the  dissent- 
ing judge,  Baron  Martin."  And  Black- 
burn, J.  :  "It  is  hardly  necessary  for  me 
to  say  more  than  that  I  entirely  agree  with 
the  judgment  of  Baron  Martin  in  the 
court  below."  With  this  view  the  other 
judges  of  the  Court  of  Exchequer  Cham- 
ber, Mellor,  Lush,  Brett,  and  Lindley,  JJ., 
all  concurred.  The  law  as  laid  down  by 
Martin,  B.,  in  the  case,  differs  essentially 
and  radically,  from  what  the  Common 
Pleas  Division  state  is  "  the  result  of  the 
cases  which  are  summed  up  in  Hickman 
V.  Haynes."  Martin,  B.'s  language  is  : 
"The  second  question  is  one  of  law,  and 
is  a  most  important  one.  It  arises  over 
and  over  again  every  day  in  the  ordinary 
transactions  of  mankind.  It  is  this  : 
There  is  a  contract  for  the  sale  of  goods 
to  be  delivered,  say  in  January,  or  upon  a 
day  of  January.  On  the  day  before  the 
delivery  is  to  take  place  the  vendor  meets 
the  vendee  and  says,  '  It  is  not  convenient 
for  me  to  deliver  the  goods  in  January,  or 
upon  the  day  named,  and  I  will  be  obliged 
if  you  will  agree  that  the  goods  shall  be 
delivered  at  a  later  period,'  and  the  ven- 
dee assents  ;  or  the  vendee  goes  to  the 
vendor,  and  says,  '  It  is  not  convenient 
for  me  to  receive  the  goods  in  January,  or 
upon  the  day  named,  and  will  you  agree 
that  the  delivery  shall  be  postponed  ? '  and 
the  vendor  assents  ;  the  latter  is  the  pres- 
ent case,  and  the  contention  on  the  part  of 
the  defendants  is  that  this  puts  an  end  to 
the  contract,  and  that  the  defendants  are 
not  bound  to  deliver  upon  the  latter  day. 
In  my  opinion,  the  contention  is  not  well 
founded.  In  the  first  place,  I  think  it  is 
decided  by  authoritj'.  It  is  impossible  to 
distinguish  the  case  of  the  application  for 
postponement  coming  from  the  vendors, 
and  one  coining  from  the  vendue,  and  the 
case  of  Ogle  v.  Lord  V^ane  in  the  Queen's 
Bench,  L.'  R.  2  Q.  B.  275,  and  in  the  Ex- 
chequer Chamber,  L.  R.  3  Q.  B.  272,  has 
decided  that  where  the  postponement  took 
place  at  the  request  of  the  vendor,  he  still 
continued  liable  upon  the  contract.  This 
case,  in  my  opinion,  concludes  the  conten- 
tion. It  was  suggested  rather  than  ar- 
gued, that  the  right  of  the  plaintiffs  to 
recover  was  barred  by  the  17th  section  of 
the  Statute  of  Frauds.  I  think  it  is  not, 
nssuwing  ["assuming,"  mark  !  this  being 
important  on  another  ))oint]  the  legal  con- 
struction of  what  took  place  between  the 
plaintiffs  and  defendants  to  be  a  contract ; 
it  was  not  a  contract  for  the  sale  of  goods, 


which  is  the  contract  provided  for  by  this 
section,  but  a  contract  respecting  the  de- 
livery of-  goods  already  sold,  which  is  not 
within  the  section  at  all." 

We  think  it  clear,  then,  that  the  Com- 
mon Pleas  Division  lay  down  the  law  cor- 
rectly, in  Plevins  v.  Downing,  1  C.  P. 
Div.  at  p.  225,  where  they  say:  "It  is 
true  that  a  distinction  has  been  pointed 
out  and  recognized  between  an  alteration 
of  the  original  contract  in  such  cases,  and 
an  arrangement  as  to  the  mode  of  perform- 
ing it.  If  the  parties  have  attempted  to 
do  the  first  by  words  only,  the  court  can- 
not give  effect,  in  favor  of  either,  to  such 
attempt  ;  if  the  parties  make  an  arrange- 
ment as  to  the  second,  though  such  ar- 
rangement be  only  made  by  words,  it  can 
be  enforced."  But  we  think  they  are 
clearly  wrong  when  they  allege,  as,  in 
effect,  they  do,  that  when  "  the  alteration 
of  the  period  of  delivery,"  or,  in  other 
words,  "the  arrangement  as  to  the  mode 
of  performing  "  the  contract,  is  made  or 
consented  to  "at  the  request  of  the  ven- 
dor," that  that  is  an  alteration  of  the 
original  contract,  and  not  an  arrangement 
as  to  the  mode  of  performing  it.  The  au- 
thorities, clearly,  sustain  no  such  distinc- 
tion, nor  is  there  anything,  in  principle,  to 
sustain  it  ;  the  ground  upon  which  the 
conclusion,  in  Plevins  v.  Downing,  1  C. 
P.  Div.  at  pp.  225,  226,  is  based,  being, 
as  we  have  shown,  an  egregious  fallacy. 

We  think  it  quite  immaterial,  where, 
on  the  one  hand,  the  vendor  is  seeking 
to  enforce  the  contract,  or,  on  the  other, 
where  it  is  the  vendee  who  is  bringing  the 
action  for  a  breach  of  the  contract,  tliat  in 
the  former  case  the  request  for  the  forbear- 
ance, or  consent  to  the  "arrangement  as  to 
the  mode  of  performing  "  the  contract,  is 
made  by  the  vendor,  or,  in  the  latter,  by 
the  vendee.  Their  rights  and  obligations, 
we  think,  on  principle  and  authority,  are 
substantially  the  same  ;  and  that,  in  either 
case,  the  action  must  be  on  the  original 
contract  ;  and  if,  as  in  Tyers  v.  Piosedale, 
&c.  Iron  Co.,  L.  R.  10  Ex.  197,  the  de- 
fendants should  object  that  the  plaintiffs 
were  bound  to  show  that  they  were  ready 
and  willing  to  perform  the  contract  at  the 
time  named  in  the  writing,  the  answer  of 
Blackburn,  J.,  there,  is  equally  applicable 
to  the  plaintiffs  as  vendors,  as  to  the 
plaintiffs  as  vendees  :  "  We  were  ready  to 
perform  the  contract  at  the  time  named  in 
the  writing,  but  we  requested  you  not  to 
require  us  to  do  so,  and  you  consented." 

Far   from    "  the   result    of   the    cases 
which    are   summed  up   in    Hickman  v. 
Haynes,"  L.  R.  10  0.  P.  598,   being  as 
41 


6i2 


COMMENTARIES   ON   SALES. 


[book   IV. 


ers,  their  signatures,"  without  any  reference  to  either  prospectus, 
or  to  the  conditions  they  contained.     The  court  held  that  as  the 


stated  ill  Plevins  v.  Downing,  1  C.  P.  Div. 
at  p.  226  ;  such  result  is,  emphatically, 
considering  the  holding  in  the  cases  there 
summed  up,  the  very  reverse  of  that  which 
is  so  stated  as  named.  The  following  is 
"  the  result "  of  such  cases  in  Hickman  v. 
Hay  lies,  L.  R.  10  C.  P.  at  p.  605,  as  stated 
in  that  case  itself.  Says  Lindley,  J.,  in 
delivering  the  unanimous  judgment  of  the 
court  :  "  The  result  of  these  cases  appears 
to  be  that  neither  a  plaintiff  nor  a  defend- 
ant can  at  law  avail  himself  of  a  parol 
agreement  to  vary  or  enlarge  the  time  for 
performing  a  contract  previously  entered 
into  in  wiiting,  and  required  so  to  be  by 
the  statute  of  frauds.  But  so  far  as  this 
principle  has  any  application  to  the  present 
case,  it  appears  to  us  rather  to  preclude  the 
defendants  from  setting  up  an  agreement 
to  enlarge  the  time  for  delivery  in  answer 
to  the  plaintiffs  demand,  than  to  prevent 
the  plaintiff  from  suing  on  the  original 
contract  for  a  breach  of  it.  There  was,  in 
truth,  in  this  case  no  binding  agreement 
to  enlarge  the  time  for  delivery.  The 
County  Court  judge  finds  that  the  plain- 
tiff permitted  the  defendants  to  postpone, 
for  their  own  convenience,  the  acceptance 
of  the  iron  in  dispute,  and  that  the  volun- 
tary witliholding  delivery  at  the  request 
of  the  defendants,  was  usual  in  the  or- 
dinary course  of  dealings  of  a  similar  kind 
in  the  iron  trade.  This  finding,  in  fact, 
shows  that  at  any  time  in  June  either  party 
could  have  changed  hismind,  and  required 
the  other  to  perform  the  contract  according 
to  its  original  terins :  see  Tyers  v.  Rose- 
dale,  &c.  Iron  Co.,  L.  R.  10  Ex.  195,  as 
decided  in  error,  reversing  the  decision 
below.  L.  R.  8  Ex.  305.  The  distinction 
between  a  substitution  of  one  agreement 
for  another,  and  a  voluntary  forbearance 
to  deliver  at  the  request  of  another,  was 
pointed  out  and  recognized  in  Ogle  v.  Lord 
Vane,  L.  R.  2  Q.  B.  275  ;  L.  R.  3  Q.  B. 
272.  In  that  case  the  plaintiff  sued  the 
defendant  for  not  delivering  iron  pursuant 
to  a  written  contract,  and  the  {)laintifT 
sought  to  recover  as  damages  the  dif- 
ference between  the  contract  price,  not 
at  the  time  of  the  defendant's  breach, 
but  at  a  later  time,  the  plaintiff  having 
been  induced  to  wait  by  the  defendant, 
and  having  waited  for  his  convenience. 
It  was  contended   that  the  plaintiff  was 

(a)  The  distinction  seems  to  be  mate- 
rial where,  for  instance,  the  request  is  by 
the  vendor  after  a  breach  of  the  contract, 
and  the  vendor  is  seeking  to  enforce  the 
contract ;  and  equally  so  where  the  request 
has  been  by  the  vendee  after  the  breach, 


in  fact  suing  for  the  breach  of  a  new  ver- 
bal agreement  for  delivery  at  a  later  date 
than  that  fixed  by  the  original  agreement ; 
but  the  court  held  otherwise,  and  that  as 
the  plaintiff  had  merely  foi'borne  to  press 
the  defendant,  and  had  not  bound  himself 
by  any  fresh  agreement,  the  plaintiff  could 
sue  on  the  original  agreement,  and  obtain 
larger  damages  than  he  could  have  ob- 
tained if  he  had  not  waited  to  suit  the  de- 
fendant's convenience.  Mr.  Justice  Black- 
bum  (L.  R.  2  Q.  B.  at  p.  282)  pointed  out 
very  clearly  the  distinction  to  which  we 
are  now  adverting,  and  came  to  the  con- 
clusion that  in  Ogle  v.  Lord  Vane  there 
was  no  substitution  of  one  contract  for  an- 
other, and  that  all  the  parties  did  was 
this  :  '  The  plaintiff  was  willing  to  wait  at 
the  request  of  the  defendant  for  the  de- 
fendant's convenience,  and  he  did  wait  for 
a  long  time,  till  Febniary  ;  but  if  he  had 
lost  patience  sooner,  and  refused  to  wait 
longer,  he  would  have  had  a  riglit  to  bring 
his  action  at  once  for  the  breach  in  July. 
It  is  clearly  a  case  of  voluntary  waiting, 
and  -not  of  alteration  in  the  contract ;  and 
the  length  of  time  can  make  no  difference.' 
In  that  case  the  reijuest  for  forbearance 
was  made  bj'  the  vendor  after  the  contract 
had  been  broken  ;  in  this  case  the  request 
for  time  was  made  by  the  purchasers  both 
before  and  after  the  time  for  completing 
the  contract  had  expired ;  but  this  dis- 
tinction does  not  appear  to  us  to  be  mate- 
rial (a).  See  Tyers  v.  Rosedale,  &c.  Ins. 
Co.,  L.  R.  8  Ex.  305  ;  L.  R.  10  E.x.  195. 
In  conclusion,  we  tliink  that,  although  the 
plaintiff  assented  to  the  defendants'  request 
not  to  deliver  the  25  tons  of  iron  in  t^ues- 
tion  in  June,  he  was  in  truth  ready  and 
willing  then  to  deliver  them,  and  that  the 
defendants  arc  at  all  events  chopped  from 
averring  the  contrary.  The  plaintiff  not 
having  bound  himself  by  any  valid  agree- 
ment to  give  further  time,  but  having  for 
the  convenience  of  the  defendants  waited 
for  a  reasonable  time  after  the  letter  of 
August  9,  to  enable  the  defendants  to  per- 
form the  contract  on  their  part,  is  enti- 
tled on  the  expiration  of  that  time  to 
treat  the  contract  as  broken  by  the  defend- 
ants at  the  end  of  June,  when  in  truth 
it  was  broken."  This,  we  think,  with 
what  we  have  previously  written  in  this 
note,  shows  with  sufficient  clearness  what 

and  the  vendee  is  bringing  an  action  for 
the  breach  of  the  contract.  This  is  what 
perhaps  misled  the  court  into  their  fal- 
lacy in  Plevins  v.  Downing,  1  C.  P.  Div.  at 
p.  225. 


PART   IX.]       THE    ESSENTIAL   REQUISITES   OF   THE   MEMORANDUM.      643 


subscription  book  was  not  internally  connected  with  either  of  the 
prospectuses,  and  as  they  could  not  be  connected  without  parol  tcs- 


tlie  law  is  as  authoritatively  settled  in  Eng- 
land, which,  of  course,  does  not  include 
that  which  we  have  pointed  out  as  a  fal- 
lacy, contained  in  the  obiter  dictum  of  the 
Common  Pleas  Division,  in  the  very  latest 
English  case  on  the  subject,  of  Plevins  i;. 
Downing,  1  C.  P.  Div.  220,  225. 

In  this  country  the  impression  having 
been  largely  entertained  that  the  principle 
which  really  governs  the  decision  of  Lord 
Ellenhorough  in  Cuff  v.  Penn,  1  M.  &  S. 
21,  had  been  disapproved  and  disaffirmed 
in  such  cases  as  Stead  v.  Dawber,  10  A.  & 
E.  57;  Goss  V.  Lord  Nugent,  5  B.  &  Ad.  58; 
Harvey  v.  Grabham,  5  A.  &  E.  61 ;  Stowell 
V.  Robinson,  3  Biug.  N.  C.  927,  and  Mar- 
shall V.  Lynn,  6  M.  &  W.  109,  there  are 
numerous  dicta  and  decisions  in  the  Fed- 
eral and  in  some  of  the  State  courts  in  con- 
travention of  the  latest  English  cases,  which 
follow  and  expressly  approve  of  the  princi- 
ple on  which,  in  effect,  Cuff  v.  Penn,  1  M. 
&  S.  21,  is  sustainable.  See  Emerson  v. 
Slater,  22  How.  28,  42  ;  Swain  v.  Sea- 
luens,  9  Wall.  254,  272;  Clarke  v.  Russell, 
3  Dall.  415  :  Hasbrouck  v.  Tappen,  15 
Johns.  200  ;  Blood  v.  Goodrich,  9  Wend. 
68  ;  Stevens  v.  Cooper,  1  Johns.  Ch.  429  ; 
Williams  v.  Robinson,  73  Me.  186.  195  ; 
Kribs  V.  Jones,  44  Md.  396,  408  ;  Organ 
V.  Stewart,  60  N.  Y.  413,  419  ;  Dana  v. 
Hancock,  30  Vt.  616,  619;  Espy  «.  Ander- 
son, 14  Pa.  St.  308  ;  Blood  v.  Goodrich, 
9  Wend.  68,  78;  Hasbrouck  v.  Tappen,  15 
Johns.  200  ;  Rogers  v.  Atkinson,  1  Ga.  12, 
20  ;  Ladd  v.  King,  1  R.  I.  224. 

But  in  a  great  number  of  cases  it  has 
been  decided  by  different  State  courts  in 
this  country,  as  in  Cuff  v.  Penn,  1  M.  & 
S.  21,  and  as  in  the  latest  English  cases 
on  the  subject,  that  the  parties  to  a  con- 
tract required  to  be  in  writing  under  the 
statute  of  frauds  may  vary  it  as  to  the 
mode  of  performance,  or  it  may  be  re- 
scinded by  parol  ;  and  that  this,  where 
the  action  is  founded  on  the  original  writ- 
ten contract,  does  not  contravene  the  stat- 
ute. The  leading  cases,  —  in  some  of 
which  regard  is  not  had  to  the  strict  rules 
of  pleading,  —  adopting  that  which  is  now 
the  thoroughly  established  principle  of  the 
English  courts  on  the  subject,  are  those 
decided  by  the  Supreme  Court  of  Massa- 
chusetts :  Cummings  v.  Arnold,  3  Mete. 
486,  490,  et  seq.,  where  the  question  is 
fully  investigated  ;  Steams  v.  Hall,  9 
Cush.  31.  In  this  latter  case  the  court 
say,  referring  to  the  decision  in  Cummings 
V.  Arnold,  3  Mete.  486,  "The  present  case 
strongly  illustrates  the  propriety  and  ne- 
cessity of  the  rule  thus  established.  From 
the  evidence  in  the  case  it  must  be  as- 


sumed that  the  plaintiff  would  have  paid 
the  money  within  the  time  limited  in  the 
written  contract  if  the  defendant  had  not 
orally  agreed  to  substitute  another  time, 
and  the  plaintiff  in  fact  tendered  the 
money  within  the  substituted  time.  The 
defendant,  therefore,  by  his  own  orally 
agreeing  to  receive  the  payment  at  another 
substituted  time,  jirevented  the  plaintiff 
from  making  the  payment  within  the  time 
limited  in  the  original  contract.  Though 
the  plaintiff  was  ready  and  offered  to  make 
the  payment  within  the  substituted  time, 
yet  the  defendant,  notwithstanding  his 
oral  agreement,  refused  to  receive  the 
money,  and  now  sets  up  the  non-perform- 
ance by  the  plaintiff  within  the  time  origi- 
nally limited,  which  the  defendant  him- 
self has  by  his  own  act  occasioned,  as  a 
defence  to  the  plaintiff's  claim  in  this  ac- 
tion. This  defence  cannot  be  maintained." 
The  same  principle  precisely  is  sus- 
tained by  the  Supreme  Court  of  Penn- 
sylvania in  McCombs  v.  McKennan,  2  W. 
&  S.  2]  6,  where  the  question  did  not  come 
up  under  the  statute  of  frauds,  but  in  a 
manner  still  more  important  in  sustain- 
ing the  principle  of  the  cases  decided  un- 
der the  statute.  In  McCombs  v.  McKen- 
nan, 2  W.  &  S.  216,  the  agreement  was 
under  seal,  with  a  subsequent  parol  agree- 
ment making  a  change  in  the  mode  of 
performance  of  the  contract.  The  action 
was  brought  in  covenant  on  the  original 
sealed  agreement,  and  the  defendant  con- 
tended that  as  the  contract  had  been  sub- 
sequently varied  by  the  agreement  of  the 
parties,  the  action  should  have  been  as- 
sumpsit on  the  new  contract,  and  not 
covenant  on  the  old  one.  But  the  court, 
in  holding  otherwise,  said:  "We  think, 
how'ever,  the  true  principle  is  stated  in 
the  charge  of  the  court,  that  this  was  not 
so  much  an  alteration  of  the  original  con- 
tract, as  a  waiver  or  dispensation  on  the 
part  of  the  defendant  of  certain  things  to 
be  done  by  the  plaintiff,  which  were  con- 
ditions precedent  to  be  performed  by  him. 
If  the  party  agrees  to  accept  the  thing  to 
be  delivered  at  another  time  or  jslace  than 
that  stipulated,  a  jierformance  of  this  by 
the  other  party  is  equivalent  to  a  perform- 
ance of  the  original  undertaking.  It  im- 
poses no  new  dirty  on  the  defendant.  He 
merely  accepts  as  performance  by  the  plain- 
tiff that  which  would  not  otherwise  have 
been  so  ;  and  the  defendant's  liabilities  on 
the  original  contract  remain  the  same." 
See,  further,  Monroe  v.  Perkins,  9  Pick. 
297 ;  Lerned  v.  Wannemacher,  91  Mass. 
(9  Allen)  412,  418;  Whittier  v.  Dana,  92 
Mass.  (10  Allen)  326;  Norton  v.  Sinionds, 


644 


COMMENTARIES   ON   SALES. 


[book   IV. 


timony,  there  was  no  sufficient  memoranduni  of  the  contract  to 
satisfy  the  statute.^ 


124  Mass.  19  ;  Low  v.  Treadwell,  12  Me. 
441,  444;  Blood  v.  Hardy,  15  Me.  (3  Shep.) 
61  ;  Richurdson  v.  Cooper,  25  Me.  (12 
Shep.)  450  ;  Musselman  v.  Stoner,  31  Pa. 
St.  265,  270  et  seq. ;  Neil  v.  Cheeves,  1 
Bail.  (S.  C.)  537;  Biiel  v.  Miller,  4  N.  H. 
196;  Grafton  Bank  v.  Woodward,  5  N.  H. 
99,  107;  Robinson  t).  Batchelder,  4  N.  H. 
40;  Negley  v.  Jetfers,  28  Ohio  St.  90; 
Bever  v.  Butler,  Wright  (Ohio),  367  ; 
Reed  v.  McGraw,  5  Ohio,  376  ;  Bethel  v. 
Woodworth,  11  Ohio  St.  393 ;  Keating  v. 
Price,  1  Johns.  Cas.  22  ;  Fleming  v.  (Gil- 
bert, 3  Johns.  523  ;  Bailey  v.  Johnson,  9 
Cow.  115,  118;  Trumbo  v.  Cartright,  1 
Marsh.  (Ky.),  582;  Massy  y.  Mead,  2  Mill. 
(La.)  157;  Benson  v.  Smith,  lb.  103; 
Perrine  v.  Cheeseman,  6  Halst.  174;  Long 
V.  Hartwell,  34  N.  J.  Law,  116,  125,  et 
seq.  ;  Lattimore  v.  Harsen,  14  Johns.  330; 
Blanchard  v.  Trim,  38  N.  Y.  225,  227  ; 
Franklin  v.  Long,  7  Gill  &  J.  (Md.)  407, 
417  ;  Watkins  v.  Hodges,  6  Harr.  &  J. 
(Md.)  38,  45;  Biyan  v.  Hunt,  4  Saeed 
(Tenn.),  543. 

^  Le  Blanc,  J.,  in  dealing  with  the 
question,  said  :  "The  evidence  is  that  the 
defendant  subscribed  a  book  entitled 
'Shakespeare's  Subscribers,  their  Signa- 
tures.* If  there  had  been  anything  iu 
that  book  which  had  referred  to  the  par- 
ticular prospectus,  that  would  have  been 
sufficient  ;  if  the  title  to  the  book  had 
been  the  same  with  that  of  the  prospectus, 
it  might,  perhaps,  have  done.  But  as 
the  signature  now  stands,  witliout  refer- 
ence of  any  sort  to  the  prospectus,  there 
was  nothing  to  prevent  the  plaintiff  from 
substituting  any  prospectus,  and  saying 
that  it  was  the  prospectus  exiiibited  in  his 
shop  at  the  time  to  which  the  signature 
related.  The  case,  therefore,  falls  ilire(-tly 
within  the  statute  of  frauds."  And  Lord 
EUenborough,  C.  J.  :  "I  cannot  connect 
the  subscription  of  the  defendants  \pla'in- 
tiffs  is  in  the  text,  but  this  is  clearly  an 
error]  in  the  book  with  the  prospectus  ; 
nor  does  defendants'  letter  refer  to  the 
prospectus  produced  at  the  trial.  It 
speaks,  indeed,  of  his  engagement  with 
the  proprietors  of  the  Boydell  Shakspeare  ; 
but  it  cannot  be  shown  to  be  the  engage- 
ment contained  in  the  particular  prospec- 
tus without  parol  evidence,  which  the 
statute  excludes.  If  there  had  been  a 
plain  reference  to  the  particular  prospec- 
tus, that  might  have  helped  the  plaintiff  ; 
but  there  is  nothing  of  that  kind."  Boy- 
dell V.  Drummond,  11  East,  157,  158. 

In  Western  v.  Russell,  3  Ves.  &  B. 
187,  a  letter  in  the  third  person  was  writ- 
ten  by   the    defendant  to   the   plaintiff, 


offering  to  sell  to  the  latter  "  the  Water- 
ing Farm  "  for  £4700,  and  a  few  days 
later  the  defendant  wrote  another  letter 
to  the  plaintiff  acknowledging  receipt  of  a 
letter  from  the  plaintiff  accepting  the  de- 
fendant's offer.  In  a  suit  for  a  specific 
performance  of  the  contract,  it  was  held 
that  the  defendants'  two  letters,  coupled 
together,  amounted  to  an  agreement, 
signed  by  the  party  to  be  charged,  within 
the  4th  section  of  the  statute.  And  see 
Coles  V.  Trecothick,  9  Ves.  234  ;  Acton  v. 
Acton,  Prec.  Ch.  237  ;  Bawdes  v.  Am- 
hurst,  Prec.  Ch.  402 ;  Huddlestone  v. 
Briscoe,  11  Ves.  583  ;  Blagden  v.  Brad- 
bear,  12  Ves.  466  ;  Maxwell  v.  Montacute, 
Prec.  Ch.  526  ;  Taylor  v.  Beech,  1  Ves. 
Sen.  297 ;  Smith  v.  Watson,  Bunb.  55  ; 
Montacue  i'.  Maxwell,  1  Str.  235  ;  Luders 
V.  Anstey,  4  Ves.  501 ;  Hodgson  v.  Hntch- 
en.son,  5  Vin.  Ab.  522,  pi.  34 ;  De  Beil 
V.  Thomson,  3  Beav.  469. 

A  letter,  signed  by  the  purcha.ser,  not 
containing  the  terms  of  the  contract,  but, 
on  a  fair  view  of  the  evidence,  referring, 
though  not  in  terms,  to  a  memorandum 
containing  them,  was  held  sufficient  within 
the  statute.      Morgan  v.   Halford,  1  Sm. 

6  G.  101.  But  a  memorandum  that  A. 
had  paid  to  B.  £50  as  a  deposit  in  part 
payment  of  £1000,  for  the  purcha.se  of  a 
house,  the  terms  to  be  expressed  in  an 
agreement  to  be  signed  as  soon  as  prepared, 
was  held  not  a  sufficient  agreement  in 
writing  to  satisfy  the  statute.  Wood  v. 
Midgley,  5  De  G.  M.  &  G.  41.  In  Ver- 
lander  v.  Codd,  1  T.  &  R.  352,  where  the 
defendant,  in  one  letter,  wrote  to  the 
plaintiff  :  "  I  will  grant  you  the  extension 
of  lease  you  solicit,"  on  premises  named, 
at  £50  a  year,  and  in  a  subsei|uent  letter 
named  the  time  when  the  lease  was  to  ex- 
pire, the  court  held  that  the  letters  con- 
nected, signed  by  the  defendant,  furnished 
written  evidence  of  all  the  essentials  of 
the  agreement,  the  jjhrase  "  extension  of 
lease,"  used  by  a  person  who  knew  the 
actual  situation  of  the  property  and  the 
interests  of  the  parties  in  it,  being  free 
from  ambiguit}',  as  it  must  refer  to  tlie  end 
of  the  term  granted  by  the  subsisting  lease, 
and,  therefore,  fixed  the  time  when  the 
extension  of  the  lease  was  to  begin. 

The  principle  of  Hinde  v.  Whitehonse, 

7  East,  558,  was  acted  upon  in  Kenworthy 
V.  Schofield,  2  B.  &  C.  945.  There,  at  a 
sale  of  goods  by  auction,  certain  conditions 
of  sale  were  read  before  tlie  biddings  com- 
menced, but  the  conditions  were  not  at- 
tached to  the  catalogue.  An  agent  for 
the  defendant  was  the  highest  bidder  for  a 
lot,   and  the   auctioneer    put    down   the 


PART  IX.]       THE   ESSENTIAL   REQUISITES   OP  THE   MEMORANDUM.      645 


In  Cooper  v.  Smith  ^  there  was  a  memorandum  of  a  sale  of  flour 
to  the  defendant,  made  by  the  plaintiff's  agent,  in  the  plaintiff's 
order  book,  whicli  was  read  over  by  the  plaintiff's  agent  to  the  de- 
fendant, but  which  was  not  signed.  In  an  action  against  the 
defendant  for  the  price,  it  was  sought  to  take  the  case  out  of  the 
statute  by  a  letter  from  the  defendant  to  the  plaintiff.  The  letter 
stated  the  contract  differently  from  that  which  was  relied  upon  by 
the  plaintiff,  and  claimed  not  to  be  bound  by  the  contract  on  the 
ground  that  it  had  not  been  performed  by  the  plaintiff.  On  the 
trial  the  jury  found  that  the  contract  between  the  parties  was  as 
claimed  by  the  plaintiff,  the  question  of  law  being  reserved  for  the 
full  court.  On  motion  to  set  aside  the  verdict  and  enter  a  non- 
suit, the  court  held  that  the  plaintiff  could  not  avail  himself  of  the 
letter  as  evidence  of  the  contract  for  one  purpose,  to  bind  the  de- 
fendant within  the  statute,  and  renounce  it  for  another  purpose, 
but  that  the  letter  must  be  taken  in  its  entirety,  and  then,  as  the 
letter  referred  to  a  different  contract  from  that  proved  on  the  part 
of  the  plaintiff,  it  falsified  the  contract  proved  by  parol  testimony, 
instead  of  being  a  recognition  of  the  same  contract,  and  put  the 
plaintiff  out  of  court.^ 


price,  £105,  and  the  agent's  name  opposite 
that  lot  iu  his  catalogue.  The  court  held 
that  no  sufficient  memorandum  of  the 
bargain  was  signed  to  satisfy  the  statute, 
the  conditions  of  sale  not  being  annexed 
to  the  catalogue.  Holroyd,  J.,  in  his 
judgment,  saiil  :  "  It  appears  to  me  that 
you  cannot  call  that  a  memorandum  of  a 
bargain  which  does  not  contain  the  terms 
of  it.  The  argument  for  the  plaintiff  is, 
that  the  conditioas  being  in  the  room  were 
virtually  attached  to  the  catalogue.  But 
I  think  that  as  they  were  not  actually 
attached  or  clearly  referred  to,  they  formed 
no  part  of  the  thing  signed.  In  the  case 
put  of  a  separation  of  the  conditions  from 
the  catalogue,  during  the  progress  of  the 
sale,  I  should  say  that  the  signatures  to 
the  latter,  made  after  the  separation,  were 
unavailing.  It  occurred  to  me  at  first, 
that  this  might  be  likened  to  the  case  of 
a  will,  consisting  of  several  detached 
sheets,  when  a  signature  of  the  last,  the 
whole  being  on  the  table  at  the  time, 
would  be  considered  a  signing  of  the 
whole  ;  but  there  the  sheet  signed  is  a  part 
of  the  whole.  Here  the  catalogue  was  alto- 
gether independent  of  the  conditions." 

In  an  old  Irish  case  (Boyce  v.  Greene, 
Batt\',  608,  A.  D.  1826),  it  was  held  under 
the  Irish  statute  of  frauds,  7  Wm.  3, 
c.  12,  §  2,  Ir.,  that  a  memorandum  of 
a  contract  signed  by  the  defendant,  which 
did  not  contain  the  names  of  both  the 
parties  to  the  contract,  was  insufficient  ; 


and  that  a  second  document,  signed  by  the 
defendant,  mentioning  both  the  names, 
but  not  referring  to  the  memorandum  of 
contract,  and  differing  with  it  in  .some 
respects,  could  not  be  connected  with  it 
nor  called  in  aid  of  it. 
1  15  East,  103. 
Cooper  V.  Smith,  15  East,  103,  was 
affirmed,  and  followed  in  Richards  v. 
Porter,  6  B.  &  C.  437.  In  this  case  the 
plaintiffs  sent  an  invoice  of  five  pockets 
of  hops  to  the  defendant,  on  Jan.  25, 
describing  the  plaintiffs  as  sellers,  and  the 
defendant  as  purchaser  of  the  hops,  and 
delivered  the  hops  the  same  day  to  the 
carriers,  to  be  conveyed  to  the  defendant, 
informing  the  defendant  at  the  same  time 
that  they  were  so  forwarded.  The  de- 
fendant wrote  the  plaintiffs,  on  Feb.  27, 
the  following  letter,  which  was  relied  on 
to  take  the  case  out  of  the  statute  : 
"The  hops  (five  pockets)  which  I  bought 
of  Mr.  Richards  on  the  23rd  of  last  month 
are  not  yet  arrived,  nor  have  I  heard  of 
them.  I  received  the  invoice.  The  last 
was  much  longer  than  they  ought  to  have 
been  on  the  road  ;  howev^er,  if  they  do  not 
arrive  in  a  few  days,  I  must  get  some  else- 
where, and,  consequently,  cannot  accept 
them."  In  an  action  for  the  price  of  the 
hops,  before  Vaughan,  B.,  the  plaintiff 
was  nonsuited;  wliich  was  sustained  by 
the  full  court.  Lord  Tenterden,  C.  J.,  in 
delivering  the  judgment  of  the  court,  say- 
ing :  "I  think  this   letter  is  not  a  sufli- 


64:6 


COMMENTARIES   ON   SALES. 


[book  IV. 


In  Saunderson  v.  Jackson,^  which  was  an  action  for  the  non- 
delivery of  goods,  a  bill  of  parcels  was  delivered  to  the  plaintiff 


cient  note  or  memorandum  in  writing  of 
the  contract  to  satisfy  the  statute  of  frauds. 
Even  connecting  it  with  the  invoice  it  is 
imperfect.  If  we  were  to  decide  that  this 
was  a  sufficient  note  in  writing,  we  should 
in  effect  hold,  that  if  a  man  were  to  write 
and  say,  '  I  have  received  your  invoice, 
but  I  insist  upon  it  the  hops  have  not 
been  sent  in  time,'  that  would  be  a  note  or 
memorandum  in  writing  of  the  contract 
sufficient  to  satisfy  the  statute.  I  think 
the  case  of  Cooper  v.  Smith,  15  East,  103, 
in  substance,  is  not  distinguishable  from 
this  case."  So,  in  Smith  v.  Surman, 
9  B.  &  C.  561,  where  the  plaintiffs  at- 
torney by  letter  required  the  defendant 
to  pay  for  timber  the  plaintiff  had  sold 
the  defendant  by  oral  contract,  and  the 
defendant  wrote  a  letter  in  answer,  stat- 
ing that  he  had  bought  the  timber,  but 
that  it  was  to  be  sound  and  good,  adding, 
"which  I  have  some  doubts  whether  it  is 
or  not,  but  he  promised  to  make  it  so,  and 
now  denies  it.  When  I  saw  him  he  told 
me  I  should  not  have  any  without  all,  so 
we  agreed  on  these  terms,  and  1  expected 
him  to  sell  it  to  somebody  else."  The 
court  held  that  there  was  no  sufficient 
memorandum  of  the  contract  to  satisfy 
the  statute.  Bayley,  J.,  thus  dealt  with 
the  question:  "But  it  is  said  that  the 
defendant  has  recognized  in  writing  the 
contract  stated  in  the  letter  of  the  plain- 
tiff's attorne3^  I  agree  that  if  there  had 
been  a  letter  written  by  the  seller,  or  his 
agent,  to  the  buyer,  specifying  the  terms 
of  a  contract,  and  the  buyer  in  his  answer 
had  recognized  that  contract,  there  would 
have  been  a  note  in  writing  of  the  bargain 
sufficient  to  satisfy  the  statute.  But  the 
defendant  in  this  case  does  not  recognize 
the  contract  stated  in  the  letter  of  the 
plaintiff's  attorney.  The  contract  as  de- 
scribed in  the  two  letters  differs  essen- 
tially as  to  the  quality  of  the  things  to  be 
sold.  In  the  letter  of  the  plaintiffs  at- 
torney, the  contract  is  spoken  of  as  one 
for  the  absolute  purchase  of  trees  at  Is.  6d. 
per  foot,  without  reference  to  quality  ;  the 
defendant  says,  that  it  was  part  of  the 
contract  that  the  timber  should  be  sound 
and  good  ;  that  Mr.  Smith  denied  it,  and 
refused  to  let  him  have  part  without  all, 
and  that  he  had  expected  he  would  have 
sold  it  again.  It  is  clear,  therefore,  that 
the  vendee  did  not  consider  it  a  binding 
bargain.  What  the  real  terms  of  the  con- 
tract were  is  left  in  doubt,  and  must  be  as- 
certained by  verbal  testimony.  The  ob- 
ject of  the  statute  was  that  the  note  in 


writing  should  exclude  all  doubt  as  to 
the  terms  of  the  contract,  and  that  object 
is  not  satisfied  by  the  defendant's  letter." 
See  Seagoode  v.  Meale,  Prec.  Ch.  560  ; 
Clerk  V.  Wright,  1  Atk.  12  ;  Ayliif  v. 
Tracy,  2  P.   Wms.  64. 

In  Archer  v.  Baines,  5  Ex.  625,  the  de- 
fendant verbally  agreed  to  purchase  a 
quantity  of  flour  from  the  plaintiff.  After 
the  receipt  of  the  flour  by  the  defendant, 
he  wrote  the  plaintiff  that  the  flour  was 
not  that  which  he  had  bought,  and  that 
he  would  not  have  it.  The  plaintiff  wrote 
in  rejjly,  that  the  flour  was  that  which  the 
defendant  had  bought,  and  enclosed  him 
the  invoice.  The  defendant,  in  answer  to 
this  letter,  rej^ated  his  denial  that  the 
flour  he  had  received  was  that  which  he 
had  purchased.  The  court  held,  susfciin- 
ing  a  nonsuit,  that  the  case  was  governed 
by  Richards  v.  Porter,  6  B.  &  C.  437. 
Alderson,  B.,  in  delivering  the  judgment, 
said:  "  Xo  doubt,  if  the  letter  of  the 
plaintiff  and  of  the  defendant  in  answer, 
taken  together,  contained  a  sufficient  con- 
tract, namely,  one  that  would  express  all 
its  terms,  tlicy  would  constitute  a  mem- 
orandum in  writing  within  the  statute. 
We  have  no  ditKculty,  therefore,  in  coming 
to  the  conclusion  that  these  letters  may 
be  looked  at  for  the  purpose  of  seeing 
whether  or  not  they  contain  a  sufficient 
contract  to  take  the  case  out  of  the  stat- 
ute ;  but  looking  at  them,  we  do  not  think 
they  do.  They  do  not  express  all  the 
terms  of  the  contract  ;  and  the  case  is  in 
truth  governed  by  Richards  v.  Porter,  6 
B.  &  C.  437,  in  .which  Lord  Tenterden 
gave  a  similar  decision  as  to  a  document 
of  a  similar  nature  which  was  then  before 
him.  There  is  a  distinct  refusal  on  the 
part  of  the  defendant  to  accept  the  flour 
which  he  had  bought  of  the  plaintiff.  It 
is  clear  from  the  letters  that  he  had  bought 
the  flour  from  the  plaintiff  upon  some  con- 
tract or  other,  but  whether  he  bought  it  on 
a  contract  to  take  the  particular  barrels  of 
flour  which  he  had  seen  at  tlie  warehouse, 
or  whether  he  had  bought  them  on  a  par- 
ticular sample  which  had  l)een  delivered  to 
him,  on  the  condition  that  they  should 
agree  with  that  sample,  does  not  ajipear  ; 
and  that  which  is  in  truth  the  dispute  be- 
tween the  parties  is  not  settled  by  the  con- 
tract in  writing."  But  in  Bailey  r.  Sweet- 
ing, 9  C.  B.  N.  s.  843,  the  defendant,  in 
reply  to  a  letter  from  the  plaintiffs,  wrote  : 
"  I  beg  to  say  that  the  only  parcel  of 
goods  selected  for  ready  money  was  the 
chimney  glasses,  amounting  to  £38  105. 


1  2  B.  &  P.  238. 


PART  IX.]       THE   ESSENTIAL   REQUISITES   OP  THE   MEMORANDUM.      647 


at  the  time  he  gave  the  defendants  the  order  for  the  goods.  The 
bill  of  parcels  was  not  signed  by  the  defendants,  but  it  referred  to 
the  goods  as  being  "  bought  of  Jackson  and  Haukin  "  (the  defend- 
ants). Tiie  court  held  that,  although  this  might  not  amount  to  a 
signing  of  the  memorandum  to  satisfy  the  statute,  a  letter  signed 
by  the  defendants,  referring  to  their  execution  of  the  plaintiff's 
order,  was  sufhciently  connected  with  the  bill  of  parcels  to  make 
the  two  constitute  a  sufficient  signed  memorandum  to  satisfy  the 
statute.^     So,  in  Allen  v.  Bennet  ^  it  was  held  that  an  order  for 


&d.,  which  goods  I  have  never  received, 
and  have  long  since  declined  to  have,  for 
reasons  made  known  to  you  at  the  time." 
The  defendant's  reason  for  refusing  to  re- 
ceive the  glasses  was  nothing  in  the  na- 
ture of  a  denial  of  the  contract,  but  was 
because  they  had  been  damaged  by  the 
carrier  before  reaching  their  destination. 
In  an  action  for  the  [irice,  the  plaintiffs 
relied  on  the  defendant's  letter  to  take  the 
case  out  of  the  statute.  The  court  held 
that  as  the  defendant's  letter  recited  all 
the  essential  terms  of  the  bargain,  it  was 
a  sufficient  memorandum  of  the  contract 
to  take  the  case  out  of  the  statute,  al- 
though the  letter  also  contained  a  state- 
ment, in  effect,  that  he  did  not  consider 
himself  in  law  liable  for  the  performance 
of  the  contract.  See  Shippey  v.  Dennison, 
5  Esp.  190,  where  an  indorsement  on  a 
paper,  intended  by  the  party  as  the  means 
of  getting  clear  of  a  contract,  was  held,  by 
Lord  EUenborough,  to  be  a  sufficient  note 
of  an  agreement  to  satisfy  the  statute. 

In  Wilkinson  v.  Evans,  L.  R.  1  C.  P. 
407,  the  defendant  had  verbally  ordered  of 
the  plaintiff  a  quantity  of  cheese  and  cau- 
dles. The  defendant  refused  to  take  the 
goods  when  they  arrived,  and  returned  the 
invoice  to  the  plaintiff',  having  written  a 
note  on  it,  which  he  signed,  containing 
the  following  langiiage,  —  "  The  cheese 
came  to  day,  but  I  did  not  take  them  in, 
for  they  were  very  badly  crushed  ;  so  the 
candles  and  cheese  are  returned."  In  a 
letter  to  the  plaintiff's  attorney,  the  de- 
fendant referred  to  the  goods,  thus  :  ' '  Had 
they  been  sent  by  canal  as  I  ordered 
them."  The  defendant,  in  an  action  for 
the  price  of  the  goods,  relied  on  the  stat- 
ute. The  court  held  that  the  above  con- 
stituted a  sufficient  note  or  memorandum 
of  the  contract. 

1  In  Hodges  v.  Horsfall,-!  Euss.  &  Myl. 
116,  it  was  decided  that  where  an  agree- 
ment expressly  refers  to  a  plan  as  an  ex- 
isting document,  forming  a  terra  in  the 
contract,  parol  evidence  is  admissible  for 
the  purpose  of  identifying  the  plan  ;  but 
unless   the   evidence  of  identity  is  clear 


and  satisfactory,  specific  performance  of 
such  an  agreement  will  be  refused.  And 
in  this  case,  where  there  were  several 
plans,  and  it  was  doubtful  to  which  of 
these  the  parties  referred,  Lord  Lynd- 
hurst,  affirming  the  judgment  of  Lord  Gif- 
ford,  held  that  the  evidence  was  not  suf- 
ficiently clear  to  identify  the  particular 
plan,  and  specific  performance  of  the 
agi-eement  was  refused. 

The  question  arose  in  Shortrede  v. 
Cheek,  1  A.  &  E.  57,  as  to  the  identifica- 
tion of  a  promissory  note,  referred  to  in  a 
written  promise  to  pay  the  debt  of  another, 
in  order  to  show  that  the  consideration 
sufficiently  appeared  by  the  writing,  to 
satisfy  the  statute.  The  action  was  on 
the  following  guarantee,  given  by  the  de- 
fendant to  the  plaintiff  :  "  You  will  be  so 
good  as  to  withdraw  the  promissory  note  ; 
and  I  will  see  you  at  Christmas,  when 
you  shall  receive  from  me  the  amount  of 
it,  together  with  the  memorandum  of  my 
son's,  making  in  the  whole  £45."  There 
was  also  another  letter  from  the  defendant 
to  the  plaintiff,  of  a  later  date,  in  which 
he  acknowledged  himself  under  obligation 
to  discharge  the  £45  due  from  his  son, 
with  interest,  without  delay.  At  the  trial 
before  Lord  Denman,  C.  J.,  the  jjlaintiff 
gave  in  evidence  the  promissory  note  of 
the  defendant's  son  for  £35,  and  the  jury 
found  that  this  was  the  promissoiy  note 
which  was  referred  to  in  the  defendant's 
guarantee,  and  gave  a  verdict  for  the 
plaintiff,  which  was  sustained  by  the  full 
court.  Parke,  J.,  thus  clearly  dealt  with 
the  question  involved  :  "  I  am  of  opinion 
that  there  is  in  this  case  a  sufficient  state- 
ment of  the  consideration.  The  defend- 
ant, by  his  letter,  requests  the  plaintiff  to 
withdravy  some  promissory  note  which  is 
in  his  possession,  and  promises,  on  his 
doing  so,  to  pay  the  amount,  together 
with  that  of  a  memorandum  given  by  his 
.son,  at  Christmas.  There  is  im  doubt 
that  the  giving  up  of  any  note  upon 
which  the  plaintiff  might  have  sued, 
would  be  a  sufficient  consideration.  Then, 
the    consideration    being    executory,  the 


1  3  Taunt.  168. 


648  COMMENTARIES   ON   SALES.  [BOOK   IV. 

goods  written  and  signed  by  the  seller  in  a  book  of  the  buyers,  but 
not  naming  the  buyers,  might  be  connected  with  a  letter  of  the  seller 
to  his  agent  mentioning  the  name  of  the  buyer,  and  with  a  letter  of 
the  buyer  to  the  seller,  claiming  the  performance  of  the  order,  to 
constitute  a  complete  contract  within  the  Statute  of  Frauds.  And 
in  Jackson  v.  Lowe,^  which  was  an  action  brought  to  recover  dam- 
ages for  the  non-performance  of  a  contract  for  the  sale  and  delivery 
of  a  quantity  of  flour,  the  letter  of  the  purchaser,  containing  the  par- 
ticulars of  the  contract,  was  answered  by  a  letter  from  the  defend- 
ants, in  which  they  referred  to  tlie  contract,  alleged  its  part-perform- 
ance, and  stated  their  readiness  to  complete  it.  The  jury  having 
found  for  the  plaintiff,  the  court  held  that  the  letters  were  suffi- 
ciently connected  to  supply  the  memorandum  to  satisfy  the  statute  ; 
Park,  J.,  saying:  "It  is  admitted  that  two  distinct  writings  may 
be  coupled  together  and  constitute  a  memorandum  within  the 
intention  of  the  statute.  The  question  therefore  is,  whether  the 
jury  were  not  warranted  in  concluding  there  was  in  this  case  a 
sufficient  note  in  writing.  The  writing  must  clearly  refer  to  the 
contract,  which  is  the  ground  of  action ;  but  how  can  there  be  a 
clearer  reference  than  in  the  defendant's  letter  ?  The  notice  con- 
tains an  assertion  of  the  contract,  specifying  the  quantity,  quality, 
and  price  of  the  flour,  and  to  this  contract  the  answer  most  clearly 
refers,  disputing  none  of  the  terms  of  it,  nor  mentioning  any  other 
terms,  but  asserting  a  part  performance." 

In  Dobell  v.  Hutchinson  ^  the  purchaser  of  lands  by  auction 
signed  a  memorandum  of  the  contract,  indorsed  on  the  particu- 
lars and  conditions  of  sale,  and  referring  to  them.  Afterwards 
he  wrote  to  the  vendors,  complaining  of  a  defect  in  the  title,  re- 
plaintiff  is  to  show  that  he  has  ful-  been  shown."  Lord  Denman,  C.  J.  : 
tilled  it,  and,  for  that  purpose,  must  of  "  There  would  be  no  end  to  such  a  course 
necessity  prove  by  parol  evidence  that  the  of  objection.  It  might  be  said  that  the 
note  withdrawn  by  him  was  the  thing  plaintiff  perhaps  had  another  son,  and 
meant  by  the  agreement.  If  it  had  ap-  that  the  letter  did  not  show  what  son 
peared  in  proof  that  there  were  two  notes  was  meant."  Littledale,  J. :  "I  think 
to  which  the  promise  might  have  applied,  there  was  a  sufficient  consideration  stated, 
there  might  have  been  a  difficulty  as  to  within  the  statute.  It  is  true  the  letter 
explaining  this  by  parol  testimony.  But  leaves  it  uncertain  what  the  note  was,  and 
when  the  evidence  is  given  of  one  note  whether  it  was  a  note  of  the  father  or  of 
only,  it  becomes  perfectly  clear  that  the  the  son  ;  and  if  it  had  appeared  that  there 
plaintiff  has  complied  with  his  part  of  the  were  two  notes,  one  given  by  each,  I  do 
agreement."  Again.  Parke,  J.  :  "Sup-  not  think  parol  evidence  could  have  been 
pose,  instead  of  'the  promissory  note,'  it  received  to  show  which  was  meant.  So  if 
had  been  '  the  hogshead  of  tobacco  in  your  there  had  been  two  notes  in  question  for 
possession,'  must  it  have  been  described  the  same  sum,  but  of  different  dates.  But 
by  marks  and  numbers  ?  '  Lord  Denman:  when  upon  the  evidence  only  one  note  ap- 
"Or,  '  the  corn  you  sold  my  son,'  must  it  pears  to  be  in  question,  no  such  explana- 
have  been  shown  what  corn  it  was  ? "  tion  is  necessary,  and  the  statement  in 
Parke,  J.:  "Even  if  the  note  had  been  writing  is  quite  sufficient." 
fully  described,  you  might  say  that  it  was  i  1  Ring.  9. 

possible  there  might  have   been   another  2  3  A.  &  E.  855. 

note,  and  that  the  contrary  should  have 


PART  IX.]       THE   ESSENTIAL   REQUISITES   OP   THE   MEMORANDUM.      649 

ferring  to  the  contract  expressly,  and  renouncing  it.  The  vendors 
wrote  and  signed  several  letters,  mentioning  the  property  sold, 
the  names  of  the  parties,  and  some  of  the  conditions  of  sale,  in- 
sisting on  one  of  them  as  curing  the  defect,  and  demanding  the 
execution  of  the  contract.  It  was  held,  that  these  letters  might 
be  connected  with  the  particulars  and  conditions  of  sale,  so  as  to 
constitute  a  memorandum  in  writing,  binding  the  vendors  under 
the  statute,  although  neither  the  original  conditions  and  particu- 
lars, nor  the  memorandum  signed  by  the  purchaser,  mentioned,  or 
was  signed  by,  the  vendors.  The  court,  in  this  case,  after  refer- 
ring to  the  facts,  said  :  "  The  cases  on  this  subject  are  not  at  first 
sight  uniform  ;  but,  on  examination,  it  will  be  found  that  they  es- 
tablish this  principle,  that  where  a  contract  in  writing  or  note  ex- 
ists which  binds  one  party,  any  subsequent  note  in  writing,  signed 
by  the  other,  is  sufficient  to  bind  him,  provided  it  either  contains 
in  itself  the  terms  of  the  contract,  or  refers  to  any  writing  which 
contains  them.  Here  the  letters  of  the  defendants  refer  expressly 
and  distinctly  to  the  conditions  of  sale,  and  they  had  in  their 
hands,  or  the  hands  of  their  auctioneer,  at  that  very  time,  the 
conditions  of  sale  signed  by  the  plaintiff,  to  which  reference  is 
made,  so  that  no  parol  evidence  of  any  kind  was  requisite  to  show 
a  contract  binding  both  parties,  except  evidence  of  the  handwrit- 
ing of  each,  which  must  be  adduced  in  all  cases."  ^ 

1  In  delivering  the  judgment  of  the  a  case  of  the  purchase  by  the  defendant 
court  in  Dobell  v.  Hutcliinson,  3  A.  &  £.  from  the  plaintiffs  of  a  quantity  of  hops, 
355,  371,  Lord  Denman,  C.  J.,  made  the  the  memorandum  named,  as  the  subject 
following  review  of  the  authorities  :  "  In  of  the  purchase,  "  27  pockets  Playsted, 
the  case  of  Boydell  i>.  Drummond,  11  East,  1836,  Sussex,  at  103s.  ;  4  pockets  Selme, 
142,  the  booksigned  by  the  defendant  did  Beckley,  at  95s."  The  defendant,  the 
not  refer  to  any  prospectus  or  contract,  same  day  on  which  the  purchase  was  made. 
In  Richards  ?7.  Porter,  6  B.  &  C.  437,  the  wrote  the  plaintiffs  as  follows:  "Please 
letter  of  the  buyer  referring  to  the  invoice  to  deliver  the  27  pockets  of  Playsted,  and 
sent  by  the  seller  expressly  repudiated  the  the  4  pockets  Selmes,  1836,  to  Mr.  Robert 
contract.  In  Champion  v.  Plummer,  1  Pearson  or  bearer  ;  20  pockets  of  Playsted 
B.  &  P.  N.  R.  252,  a  memorandum  signed  to  be  forwarded  per  first  ship,  and  the  re- 
by  the  seller  only  was  held  insufficient  to  maining  eleven  pockets  juer  second  ship." 
charge  even  him,  because  the  buyer's  name  It  was  held  that  the  memorandum,  inde- 
did  not  appear  on  it,  or  on  any  other  paper  pendent  of  the  letter,  satisfied  the  statute; 
to  which  it  referred.  In  Wheeler  v.  Col-  but,  on  the  question  as  to  the  sufficient 
Her,  M.  &  M.  123,  the  same  circumstance  recognition  of  the  contract  by  the  letter, 
occurred,  namely,  that  the  seller's  name  Lord  Abiuger,  C.  B.,  considered  it  a  mat- 
did  not  appear  on  the  conditions  of  sale  ter  of  some  doubt,  although  his  inclination 
signed  by  the  buyer  ;  and  Lord  Tenterden  was  that  the  reference  in  the  letter  being 
thought  that  the  seller  could  not  sue  ;  but  to  the  only  contract  proved  in  the  case 
the  case  w^as  decided  on  another  point,  was  sufficient,  and  BoUand,  B.'s,  opinion 
On  the  other  hand,  the  cases  of  Saunder-  inclined  the  same  way.  But  Parke,  B., 
son  V.  Jackson,  3  Taunt.  169  ;  Allen  v.  said :  "  If  the  question  turned  on  the  re- 
Bennet,  2  B.  &  P.  238  ;  and  .lackson  v.  cognition  by  the  subsequent  letter,  I  own 
Lowe,  1  Bing.  9,  show  cleai'ly  that  a  sub-  I  should  have  had  very  considerable  doubt 
sequent  letter  may  be  a  sufficient  note  to  whether  it  referred  sufficiently  to  the  con- 
bind  the  writer,  where  the  requisites  above  tract ;  it  refers  to  the  subject-matter,  but 
mentioned  are  found,  even  where  it  is  not  to  the  specific  contract."  See  Lobb 
after  a  dispute  has  arisen."  In  Johnson  v.  Stanley,  5  Q.  B.  574,  where  it  was  held 
V.  Dodgson,   2  M.  &  W.  653,  which  was  that  parol  evidence  was  admissible  under 


650 


COMMENTARIES   ON   SALES. 


[book   IV. 


The  doctrine  in  the  matter  was  laid  down  generally  by  Lord 
Cranworth,L.  C.,in  Ridgway  v.Wharton,^  that  if  there  is  au  agree- 
ment to  do  something,  not  expressed  on  the  face  of  the  agreement 
signed,  that  something  which  is  to  be  done  being  included  in  some 
other  writing,  parol  evidence  may  be  admitted  to  show"  what  that 
writing  is,  so  that  the  two  taken  together  may  constitute  a  biud- 
ino;  ao'reement  within  the  Statute  of  Frauds.^     While  the  correct- 


6  Geo.  4,  c.  16,  §  131,  to  show  the  amoant 
of  an  account,  the  certificated  bankrupt 
having  given  a  written  promise  to  pay 
*'  the  amount  of  Mr.  Stanley's  account." 
In  Jacob  v.  Kirk,  2  M.  &  Rob.  2-21,  the 
defendant  bought  from  the  plaintiff  a  quan- 
tity of  cigars,  on  July  3,  and  signed,  and 
gave  to  the  plaintiff,  the  following  memo- 
randum :  "  Mr.  Kirk,  6  doz.  King's,  6 
doz.  Queen's,  at  25,s.  per  lb.  ;  2  doz.  others 
at  20s.  per  lb.  ;  to  Russell  Street,  Man- 
chester." The  plaintiirs  name  not  appear- 
ing in  the  memorandum,  in  an  action  for 
the  price  of  the  cigars  the  plaintiff  relied, 
to  supply  the  defect  in  the  memorandum, 
upon  a  letter  written  by  the  defendant  to 
the  plaintiff  in  August  following,  stating 
that  he  had  received  a  letter  from  the 
plaintiff,  "that  he  was  surprised  at  the 
plaintiff's  expecting  him  to  accept  the  ci- 
gars, which,  instead  of  having  been  sent 
in  nine  or  ten  days,  had  not  arrived  in 
Manchester  till  the  10th  of  August ; "  that 
he  therefore  should  not  think  of  accepting 
them,  and  referred  the  plaintiff  to  his,  the 
defendant's  solicitor.  No  reference  was 
made  in  the  letter  to  the  memorandum. 
On  the  trial,  before  Parke,  B.,  it  was  held 
that  the  objection  of  the  statute  of  frauds 
was  fatal ;  Parke,  B.,  saying  :  "  My  opin- 
ion is,  that  the  letter  ought  clearly  to  re- 
fer to  the  memorandum  ;  and  that  the 
whole  mischief  intended  to  be  guarded 
against  by  the  statute  would  be  incurred 
if  verbal  evidence  were  admitted  to  show 
that  the  documents  must  necessarily  be 
presumed  to  refer  to  each  other."  The 
defendant  having  obtained  a  verdict  on 
the  issue  as  to  the  non-delivery  of  the 
cigars  within  a  reasonable  time,  also,  by 
direction  of  Parke,  B.,  took  a  verdict  on 
the  plea  of  the  statute.  See  Peek  v. 
North  Staffordshire  Ry.  Co.,  10  H.  L. 
Cas.  473,  568  et  seq.,  as  to  the  application 
of  the  same  principle  to  a  contract  limit- 
ing the  liability  of  a  railway  company 
under  17  &  18  "Vic,  c.  31,  §  7. 

In  McDonald  v.  Longbottom,  5  Jur. 
N.  s.  1102  ;  1  E.  &  E.  977,  987  ;  a  conver- 
sation between  one  of  the  plaintiffs  and  the 
defendant's  agent  took  place  with  reference 
to  a  quantity  of  wool,  which  the  plaintiffs 
offered  for  sale  to  the  defendant.  Subse- 
quently the   defendant's    agent  wrote   to 


the  plaintiffs  making  them  an  ofiFer  for 
their  wool,  speaking  of  it  as  "  your  wool." 
The  plaintiffs  accepted  the  offer.  The 
court  held  that,  for  the  purpose  of  identi- 
fying the  subject  of  the  contract,  and  to 
show  what  was  meant  by  "your  wool," 
parol  evidence  was  admissible  of  the  con- 
versation which  had  taken  place  prior  to 
the  letters  having  been  written.  Lord 
Campbell,  C.  J.,  said  :  "An  offer  of  16s. 
per  stone  for  'your  wool,'  to  be  delivered 
in  Liverpool,  was  made  to  the  plaintiffs, 
and  that  offer  was  accepted  by  them  ;  and 
that  contract  was  in  writing.  I  am  of 
opinion  that  where  there  is  a  contract  for 
the  sale  of  a  specific  subject,  [larol  evidence 
may  be  received  to  show  what  the  nature 
of  that  subject  was  ;  and  for  that  purpose 
any  fact  may  be  proved  which  was  within 
the  knowledge  of  both  parties  at  the  time 
the  contract  was  made.  In  this  case  it 
was  proposed  to  prove  the  conversation 
between  one  of  the  plaintiffs  and  Stewart, 
the  agent  of  the  defendant,  in  which  it 
was  mentioned  that  the  defendant  had 
wool  coming  from  his  own  flock,  and  that 
it  was  to  be  disposed  of,  and  also  that  he 
had  contracted  for  the  purchase  of  other 
wool  ;  and  with  this  knowledge  the  con- 
tract is  made.  There  was  an  offer  to  the 
plaintiffs  to  buy  'your  wool,'  and  that 
offer  was  accepted  ;  that  specific  subject- 
matter  is  to  be  -sold  at  16s.  per  stone,  to 
be  delivered  at  Liverpool.  There  is  no 
difficulty  in  admitting  in  evidence  what 
passed  between  the  plaintiffs  and  the  de- 
fendant's agent  before  the  letter  was  writ- 
ten. It  does  not  add  to  or  vary  the 
written  contract,  and  it  is  no  part  of  the 
contract,  but  enables  us  to  say  what  the 
contract  refers  to."  See  Sari  v.  Bourdil- 
lon,  1  C.  B.  X.  s.  188  ;  Smith  v.  Jeffreys, 
15  M.  &  \V.  561  ;  Sotilichos  v.  Kemp,  3 
Ex.  105  ;  Panford  v.  Raikes,  1  Mer.  646, 
653  ;  Humphrey  v.  Dale,  7  El.  &  Bl.  267, 
275  ;  3  Jur.  N.  s.  213,  215  ;  5  Jur.  N.  s. 
191  ;  Vandenburgh  v.  Spooner,  L.  R.  1 
Ex.  316  ;  Spicer  v.  Cooper,  1  Q.  B.  424  ; 
Williams  v.  Lake,  2  E.  &  E.  349. 

1  6  H.  L.  Cas.  238,  257. 

2  The  difficulty  in  applying  this  rule 
is  shown  by  the  case  of  Ridgway  v.  Whar- 
ton, 6  H.  L.  Cas.  238,  itself!  In  this 
case  it  was  first  held  by  Vice-chancellor 


PART   IX.]      THE   ESSENTIAL   REQUISITES   OP   THE   MEMORANDUM.      651 


ness  of  this  proposition  was  conceded  by  the  other  Law  Lords 
sitting  in  Ridgway  v.  Wharton,  it  is  evident  that  great  differences 


Stuart  that  the  correspondence  between 
the  plaintiff  and  the  defendant's  agent, 
connected  with  written  instructions,  set- 
ting forth  the  terms  of  a  lease,  showed  a 
contract  between  the  parties,  and  took 
the  case  out  of  the  statute.  On  appeal, 
this  decision  was  reversed  by  Lord  Cran- 
worth,  L.  C.  (Ridgway  v,  Wharton,  3 
De  G.  M.  &  G.  677),  who  held  that  the 
facts  showed  a  contract  agreed  upon  be- 
tween the  plaintiff  and  the  defendant's 
agent  ;  but  that  there  was  not  a  sufficient 
note  in  writing  to  satisfy  the  statute. 
But  the  bill  was  dismissed  without  costs. 
On  appeal  to  the  House  of  Lords  (Ridg- 
way V.  Wharton,  6  H.  L.  Cas.  238)  Lord 
Cranworth  entirely  changed  his  opinion, 
and  held,  on  the  authority  of  Allen  & 
Bennet,  3  Taunt.  16^,  and  Dobell  v. 
Hutchinson,  3  A.  &  E.  355,  that  if  the 
facts  showed  a  contract,  there  was  sufh- 
cient  memoranda  of  it  to  take  the  case 
out  of  the  statute  ;  but  that  the  facts 
neither  made  out  an  agency  in  the  party 
signing  for  the  defendant,  nor,  assuming 
such  agency,  did  they  make  out  a  con- 
tract. Lord  St.  Leonards,  however,  de- 
livered a  masterly  judgment,  agi'eeing  with 
Lord  Cranworth,  Lord  Brougham,  and 
Lord  Wensleydale,  that,  assuming  the 
agency  and  that  there  was  a  contract,  the 
evidence  was  sufficient  to  satisfy  the  stat- 
ute; but,  against  the  prevailing  view. 
Lord  St.  Leonards  expressed  a  very  strong 
opinion  that  the  agency  was  established, 
and  that  the  terms  of  a  concluded  con- 
tract had  been  agreed  upon  between  the 
parties.  Lord  Brougham  was  of  the  opin- 
ion that  the  agency  was  not  made  out, 
but  had  more  doubt  whether,  assuming 
the  agency,  the  writings  did  not,  in  effect, 
show  a  concluded  agreement.  Lord  Wens- 
leydale held  with  Lord  Cranworth,  in  his 
changed  opinion,  on  all  three  grounds, 
but  rested  his  view  largely  on  the  fact  that 
as  the  coiTespondence,  to  fix  the  signing, 
had  reference  to  instructions  for  a  lease, 
which  instructions  might  be  departed  from 
or  added  to  in  preparing  the  lease  itself ; 
therefore  the  instructions,  assuming  them 
to  have  been  agreed  upon  between  the 
parties,  with  the  correspondence,  did  not 
show  a  contract  between  the  parties.  As 
the  gist  of  Lord  St.  Leonards'  very  able 
decision  is,  that  the  instructions  embodied 
all  the  terms  which  the  [larties  had  agreed 
to,  and  showed  a  completed  contract,  it  is 
more  than  doubtful  whether  the  reasoning 
of  Lord  St.  Leonards  is,  on  that  point, 
met  by  the  view  of  Lord  Wensleydale  and 
the  ground  on  which  it  is  based.  If  so, 
then  the  cases  which  have  decided  that 


signed  instructions  for  a  lease,  setting  out 
the  essential  terms  of  a  lease,  may  clearly 
be  treated  as  an  agreement  for  a  lease,  and 
satisfy  the  statute  of  frauds,  are  over- 
thrown ;  which  we  scarcely  think  is  the 
case.  See  Verlander  v.  Codd,  Tur.  & 
Russ.  352  ;  Western  v.  Kussell,  3  Ves.  & 

B.  187:  Thomas  v.  Bering,  1  Keen,  729  ; 
Gibbins  v.  The  Board  of  the  Metropolitan 
Asylum,  11  Beav.  1. 

The  majority  of  the  Law  Lords  sitting 
in  Ridgway  v.  Wharton,  6  H.  L.  Cas. 
238,  rested  their  view  largely,  as  to 
whether  there  was  an  agi'eement  con- 
cluded upon  between  the  parties,  on  the 
opinion  of  Lord  Redesdale,  in  Clinan  v. 
Cooke,  1  Sch.  k  Lef.  22,  33,  of  the  de- 
cision of  Lord  Thurlow,  in  Tawney  v. 
Crowther,  3  Br.  Ch.  Cas.  161,  318.  Lord 
Redesdale,  in  expressing  doubt  as  to 
whether  Tawney  v.  Crowther  was  well 
decided,  intimated  that  Lord  Thurlow 
was  himself  in  doubt  as  to  his  decision, 
and  that  he  had  manifested  this  doubt  by 
allowing  the  defendant  his  costs,  although 
he  had  been  decided  to  be  in  the  wrong. 
Lord  Redesdale  seems  to  have  been  in  error 
on  both  points.  The  case  came  up  first  in 
July  1790,  when  Lord  Thurlow  overruled 
the  plea  of  the  Statute  of  Frauds,  holding 
that  a  letter  signed  by  the  defendant,  in 
answer  to  one  from  the  plaintifTs  attorney, 
wishing  "the  agreement  to  be  signed," 
sufficiently  referred  to  the  agreement  which 
had  been  prepared,  and  which  remained  in 
the  defendant's  custody.  The  question 
came  up  a  year  later  on  the  hearing,  when 
Lord  Thurlow  not  only  adhered  to  his  pre- 
vious decision,  but,  according  to  the  report 
of  the  case  in  3  Br.  Ch.  Cas.  319  et  seq., 
gave  excellent  reasons  for  doing  so,  and, 
we  think,  laid  down  principles  of  law  of 
undoubted  soundness.  See  supra,  p.  628 
n.  On  the  question  of  costs,  too,  Lord 
Redesdale  seems  to  have  been  in  error, 
and  was  probably  misled  by  the  fact,  that, 
in  Tawney  v.  Crowther,  there  were  two 
defendants,  Crowther,  and  the  plaintiff's 
own  attorney,  one  Morrell  ;  to  the  latter 
of  whom,  and  not  to  the  wrong-doer, 
Crowther,  were  costs  allowed.  See  Taw- 
ney r.  Crowther  and  another,  3  Br.  Ch. 
Cas.  161,  and  Forster  v.  Hale,  3  Ves.  696, 
following  Tawney  v.   Crowther,   3  Br.  C. 

C.  161,  318.  See  Mr.  Hovenden's  note  to 
Forster  v.  Hale,  3  Ves.  713,  intimating 
that  as,  contrary  to  the  opinion  of  Lord 
Redesdale,  costs  were  not  given  to  the 
wrong-doing  defendant,  in  Tawney  v. 
Crowther,  3  Br.  C.  C.  318,  "  Lord  Redes- 
dale's  inference,  that  Lord  Thurlow  felt 
diffident  of  liis  opinion  in  that  case,  must 


652 


COMMENTARIES   ON   SALES. 


[book   IV. 


will  arise  in  its  application  in  doubtful  cases.     As  will  be  seen  by 
the  cases  we  have  stated  the  doubt  generally  arises  from  the  un- 


fall,  together  with  the  premises  upon  which 
it  was  built." 

Lord  St.  Leonards  in  Ridgway  v. 
Wharton,  6  H.  L.  Cas.  at  p.  293,  ex- 
pressed the  opiuion,  with  reference  to  the 
language  of  the  defendant  in  his  letter  to 
the  plaintiff's  attorney,  in  Tawney  v. 
Crowther,  3  Br.  C.  C.  161,  318,  that 
"one  man  might  think  that  those  words 
were  sufficient,  and  another  man  might 
think  they  were  not."  While  this,  as 
well  as  the  principal  case  we  have  been 
considering,  shows  how  difficult  the  appli- 
cation of  the  law  on  this  suVjject  often  is, 
we  are  of  the  opinion  that  the  con- 
struction put  by  Lord  Thurlow  in  Tawney 
V.  Crowther,  8  Br.  C.  C.  161,  318,  in  the 
light  of  the  surrounding  circumstances,  is 
much  more  reasonable  than  that  of  Lord 
Redesdale,  on  the  same  language,  in  his 
comments  on  it  in  Clinan  v.  Cooke,  1  Sch. 
&  Lef.  at  p.  34.  On  the  question  of  costs, 
it  is  noteworthy  that  in  Ridgway  v. 
Wharton,  3  De  G.  M.  &  G.  677  ;  6  H.  L. 
Cas.  238,  although  the  decision  of  Vice- 
Chaucellor  Stuart  was  reversed,  and  al- 
though the  appeal  to  the  House  of  Lords 
was  dismissed,  both  the  reversal  of  the  de- 
cree and  the  dismissal  of  the  appeal  were 
without  costs. 

A  conti'ariety  of  opinion  similar  to  that 
which  characterizes  Ridgway  v.  Wharton, 
3  De  G.  M.  &  G.  677  ;  6  H.  L.  Cas.  238, 
is  also  to  be  found,  on  the  same  subject, 
in  Fitzmaurice  v.  Bayley,  6  E.  &  B.  868  ; 
8  E.  &  B.  664  ;  9  H.  L.  Cas.  78.  In  this 
latter  case,  there  was  a  complete  accord  in 
opinion  as  to  the  doctrine  applicable  to  the 
case,  that,  if  there  be  an  agreement  in 
writing  between  the  parties  it  is  not  ne- 
cessary that  it  should  be  in  one  paper,  but 
that  it  may  be  collected  from  many,  pro- 
vided they  are  connected  by  internal  evi- 
dence. The  opinion  which  ultimately 
prevailed,  although  not  with  perfect 
unanimity  (Lord  Campbell  and  Wight- 
man,  J.,  being  of  a  different  opinion  from 
the  majority),  was,  that  the  writings  did 
not  show  a  completed  contract.  The 
ground  taken  in  this  case  would  seem  to 
be  more  reasonable  than  in  that  of  Ridg- 
way V.  Wharton,  as  in  this  latter  case 
the  effect  of  the  decision  was,  that  al- 
though all  the  essential  terms  of  the 
contract  wei-e  stated  in  the  writings,  — 
letters  and  instructions,  —  yet  that  as,  in 
preparing  the  formal  contract  under  the 
instructions,  the  instructions  might  possi- 
bly be  departed  from,  and  new  terms  be 
added,  therefore  the  writings  did  not  show 
a  completed  contract.    But  in  Fitzmaurice 


V.  Bayley,  9  H.  L.  Cas.  78,  the  more  tena- 
ble ground,  in  principle,  was  taken,-  that 
the  writings  did  not  show  all  the  essentials 
of  the  contract,  the  writings  being  silent 
as  to  an  absolutely  necessary  ingredient  to 
make  a  contract  with  reference  to  one  of 
the  subjects  of  the  negotiations  between 
the  parties.  See  Hammersley  v.  De  Biel, 
12  CI.  &  F.  45. 

In  Shippey  v.  Deunison,  5  Esp.  190, 
where  a  party  had  entered  into  a  parol 
agreement  for  a  lease,  and  a  draft  of  it  was 
prepared.  Lord  Ellenborough  held,  that 
though  the  agreement  was  void  under  the 
statute,  yet  by  an  indorsement  on  the 
draft,  where  the  party  in  effect  said,  that 
he  was  unable  to  perform  the  agreement, 
the  agreement  was  sufficiently  proved  to 
satisfy  the  statute. 

In  Morris  v.  Wilson,  5  Jur.  N.  s.  168, 
where  there  was  a  memorandum  in  writing 
which  was  referred  to  in  another  memor- 
andum, the  latter  of  which  was  signed  by 
the  party  to  be  charged,  the  two  combined 
making  a  contract ;  it  was  held  that  parol 
eridence  was  admissible  to  identify  the 
first  memorandum  as  that  which  was  re- 
ferred to  by  the  party  to  be  charged.  And 
see  Shortrede  v.  Cheek,  1  A.  &  E.  57  ; 
Warner  v.  Wellington,  3  Drew.  523  ;  Ja- 
cobs I'.  Kirk,  2  Moo.  &  R.  221  ;  Smith  v. 
Surman,  9  B.  &  C.  569  ;  Hodges  v.  Hors- 
fall,  1  Russ.  &  M.  116. 

Where  a  letter  was  written,  signed  by 
the  defendant,  in  which  he  says  :  "  I  have 
this  day  sold  the  house,  &c.,  in  Newport, 
to  0.  (the  plaintiff),  for  1000  guineas,  the 
money  to  be  paid  as  soon  as  the  deeds  can 
be  had  from  D.,"  it  was  held,  on  the  doc- 
trine id  ecrtum  est  quod  certum  reddi  potest, 
that  the  deed  referred  to  could  be  looked 
to  for  the  purpose  of  identifving  the  house. 
Owen  V.  Thomas,  3  My.  &  K.  353. 

In  Jones  v.  Tlie  Victoria  Graving  Dock 
Co.,  2  Q.  B.  Div.  814,  where  a  draft  agree- 
ment, and  a  paper  modifying  it,  were 
agreed  upon  between  the  parties,  and  a 
resolution  entered  on  the  minutes  of  the 
defendants,  the  parties  to  be  charged,  was 
signed  by  the  defendants'  chairman  for  the 
purpose  of  verifying  the  accuracy  of  the 
entry,  the  entry  stating  that  the  agreement 
was  as  in  the  draft  and  in  the  ]>aper  modi- 
fying it;  it  was  held,  in  an  action  to  enforce 
the  contract  against  the  defendants,  that 
the  statute  was  satisfied,  although  it  was 
the  intention  of  the  defendants  that  the 
contract  as  agreed  Ufwn  should  have  been 
afterwards  duly  engrossed  and  executed  ; 
and,  following  Ridgway  v.  Wharton,  6  H. 
L.  Cas.  238,  that  parol  evidence  was  ad- 


PART  IX.]       THE   ESSENTIAL   REQUISITES    OP   THE   MEMORANDUM.       653 

certainty  existing  whether  in  the  particular  case  the  documents 
are  sufficiently  connected  by  internal  reference  to  amount  to  the 
signing  of  a  memorandum  to  satisfy  the  statute,  the  function  of 
the  parol  evidence  being  merely  to  identify  the  papers  referred  to 
and  relied  upon  for  that  purpose.^ 


missible  to  identify  the  draft  agreement, 
and  the  jiaper  modifying  it. 

In  Brogden  v.  Metropolitan  Ry.  Co., 
L.  R.  2  App.  Cas.  666,  672,  where  the 
question  came  up  analogous  to  that  which 
was  decided  in  Dunlop  v.  Higgins,  1  H.  L. 
Cas.  38  ;  in  Kidgway  v.  Wharton,  6  H.  L. 
Cas.  238,  and  in  kindred  cases,  Lord 
Cairns,  L.  C,  said  :  "There  are  no  cases 
upon  which  difference  of  opinion  may 
more  readily  be  entertained,  or  which  are 
always  more  embarrassing  to  dispose  of, 
than  cases  where  the  couit  has  to  decide 
whether  or  not,  having  regard  to  letters 
and  documents  which  have  not  assumed 
the  complete  and  formal  shape  of  executed 
and  solemn  agreements,  a  contract  has  been 
really  constituted  between  the  parties. 
But,  on  the  other  hand,  there  is  no  prin- 
ciple of  law  better  established  than  this, 
that  even  although  parties  may  intend  to 
have  their  agreement  expressed  in  the 
most  solemn  and  complete  form  that 
conveyancers  and  solicitors  are  able  to 
prepare,  still  there  may  be  a  consensus 
between  the  parties  far  short  of  a  complete 
mode  of  expressing  it,  and  that  consensus 
may  be  discovered  from  letters  or  other 
documents,  I  mean  imperfect  and  incon- 
plete  as  regards  form."  In  this  case  the 
facts  were  that  the  appellants  had  for 
some  years  supplied  the  respondents  with 
coals.  At  last  it  was  suggested  by  the 
appellants  that  a  contract  should  be  en- 
tered into  between  them.  After  their 
agents  had  met  together,  the  terms  of 
agreement  were  drawn  up  by  the  agents 
of  the  respondents  and  sent  to  the  appel- 
lants, who  filled  up  certain  parts  of  it 
which  had  been  left  in  blank,  and  intro- 
duced the  name  of  the  gentleman  who 
was  to  act  as  arbitrator  in  case  of  differen- 
ces between  the  parties,  wrote  "  approved  " 
at  the  end  of  the  paper,  and  signed  it. 
The  appellants'  agent  sent  back  the  paper 
to  the  agent  of  the  respondents,  who  put 
it  in  his  desk,  and  nothing  further  was 
done  in  the  way  of  a  formal  execution  of 
it.  Both  parties  for  some  time  acted  in 
accordance  with  the  arrangements  men- 
tioned in  the  paper ;  coals  were  supplied 
and  payments  made  as  therein  stated,  and 
when  some  complaints  of  inexactness  in 
the  supply  of  coals,  according  to  the  terms 
stated  in  the  paper,  were  made  by  the  re- 
spondents, there  were  explanations  and 
excuses  given  to  the  appellants,  and  the 


"contract"  was  mentioned  in  the  corres- 
pondence, and  matters  went  as  before  ; 
until,  finally,  difficulties  having  arisen,  the 
appellants  declined  to  continue  the  supply 
of  coals.  In  an  action  for  damages  for  breach 
of  the  contract,  the  House  of  Lords  held, 
affinning  the  judgment  of  the  Common 
Pleas  and  the  Court  of  Appeal,  that  there 
was  a  contract  for  the  coals,  acted  on 
by  both  parties,  which  was  binding,  even 
though  they  might  have  intended  to  have 
executed  a  more  formal  agreement. 

1  The  question  as  to  the  admissibility 
of  parol  evidence  to  connect  papers  has 
often  arisen  in  connection  with  testamen- 
tary instruments,  where  the  question  has 
been  whether  the  reference  has  been  such 
as  to  admit  of  the  paper  referred  to  being 
received  for  probate  as  a  part  of  the  will. 
See  In  the  Goods  of  Sunderland,  L.  R.  1 
Pr.  &  Div.  199.  In  this  case  the  prin- 
ciple was  acted  on  that  was  thus  laid 
down  by  the  Judicial  Committee  of  the 
Privy  Council  in  Allen  v.  Maddock,  11 
Moo.  P.  C.  at  p.  454  :  "A  reference  to  a 
will  may  be  in  such  terms  as  to  exclude 
parol  testimony,  as  where  it  is  to  papers 
not  yet  written,  or  where  the  description 
is  so  vague  as  to  be  incapable  of  being 
applied  to  any  instrument  in  particular, 
but  the  authorities  seem  clearly  to  estab- 
lish that  where  there  is  a  reference  to  any 
written  document  described  as  then  ex- 
isting, in  such  terms  that  it  is  capable  of 
being  ascertained,  parol  evidence  iS  ad- 
mis.sible  to  ascertain  it."  The  opinion  of 
Lord  Eldon,  in  Smart  v.  Prajeau,  6  Yes. 
565,  is  to  the  same  effect,  namely,  that  a 
testamentary  paper  duly  executed,  in  an- 
other, must  refer  to  it  as  a  written  docu- 
ment then  existing,  in  such  terms  that  it 
may  be  ascertained.  The  holding  of  Sir 
C.  Cressweli,  in  Von  Straubenzee  v.  Mark, 
3  Sw.  &  Tr.  6,  12,  is  to  the  same  effect. 
And  see  Sandford  v.  Vaughan,  1  Phillim. 
39,  128  ;  Harvey  v.  Bagshaw,  2  Phillim, 
48  ;  Masterman  v.  Maberly,  2  Hagg.  235 ; 
Smith  V.  Attersoll,  1  Russ.  266  ;  Milledge 
V.  Laman,  4  Desaus.  (S.  C. )  623. 

In  a  case  where  it  was  claimed  that 
memoranda  of  instructions  given  by  a  tes- 
tator to  a  clerk,  who  wrote  them  down, 
and  which  were  reftuTcd  to  by  the  testator 
in  his  will,  should  be  received  as  part  of 
the  will,  Sir  J.  P.  Wilde  refused  to  grant 
probate  of  the  notes  of  instructions,  on 
the  ground  that  before  the  court  can  make 


654  COMMENTARIES   ON   SALES.  [BOOK   IV. 

Suit  was  brought  by  the  plaintiffs  to  recover  the  price  of  300 
bales  of  brown,  and  100  cases  of  blue  drills  which  they  had  previ- 
ously sold  to  the  defendant.  The  contract  for  the  purchase  was 
made  with  the  plaintiff's  agents,  M.  &  S.,  in  Boston,  on  September 
19.  The  following  memorandum  was  made  out,  and  signed  by 
M.  and  by  the  defendant :  "Sept.  19,  W.  W.  Goddard,  12  mos. 
300  bales  S.  F.  drills,  7| ;  100  cases  blue  do.,  8|.  Credit  to 
commence  when  ship  sails — not  after  Dec.  1;  delivered  free 
of  charge  for  truckage.  The  blues,  if  color  satisfactory  to  pur- 
chasers. R.  M.  Mason,  W.  W.  Goddard."  A  bill  of  parcels  was 
made  out  under  date  of  September  30,  stating  the  purchase  of 
the  goods  by  the  defendant,  carrying  out  prices  and  footing  up 
the  amount  at  $18,565.03,  also  the  terms  of  payment,  —  note 
at  twelve  months,  payable  to  the  treasurer  of  the  plaintiffs. 
This  was  forwarded  to  the-  defendant  on  October  11,  and,  after 
its  receipt,  in  pursuance  of  an  order  from  him,  the  300  bales 
were  sent  from  their  establishment  at  Salmon  Falls,  by  the  rail- 
road, and  arrived  at  the  depot  in  Boston  on  October  30,  of  which 
notice  was  given  to  the  defendant  on  the  same  day,  and  a  deliv- 
ery tendered.  He  requested  that  the  goods  should  not  be  sent 
to  his  warehouse,  or  place  of  delivery,  for  the  reason,  as  it  subse- 
quently appeared,  that  he  had  no  room  for  storage.  The  agents  of 
the  plaintiffs  the  next  day  renewed  the  tender  of  delivery,  by  let- 
ter, adding  that  the  goods  remained  at  the  depot  at  the  defendant's 
risk  and  subject  to  storage  ;  to  which  no  answer  was  returned. 
On  the  night  of  November  4,  the  railway  depot  was  consumed, 
and,  with  it,  the  300  bales  of  goods.  The  defendant  liaving  re- 
fused to  give  the  twelve  months'  note,  suit  was  brought.  The  Su- 
preme Court  of  the  United  States  held,^  Catron  and  Curtis,  J  J., 
dissenting,  and  Daniel,  J.,  as  to  the  Statute  of  Frauds,  assenting, 
that  the  plaintiffs  were  entitled  to  recover.     The  court  held  that 

a  grant  of  probate  it  must  be  satisfied  that  of  Duff,  4  N.  of  Cas.  474  ;  In  the  Goods 
at  the  time  the  testator  signed  the  will  he  of  Stewart,  3  Sw.  &  Tr.  192. 
intended  to  refer  distinctly  to  some  docu-  But  in  the  case  of  In  the  Goods  of 
ment  in  existence  of  which  he  had  cog-  Mercer,  L.  R.  2  Pr.  &  Div.  91,  where  tlie 
nizance,  and  that  he  gave  it  a  definition  testator  had  executed  a  will  in  India, 
by  which  the  court  is  able  to  identify  it.  which  he  had  left  there,  deposited  in  a 
In  the  Goods  of  Pascal!,  L.  R.  1  Pr.  &  bank,  and  then  in  England  executed  a 
Div.  606.  Where  in  a  will  there  was  a  codicil  to  his  will,  confirming  it  in  all  par- 
reference  by  the  testator  to  a  paper  "left  ticulars  except  as  altered  by  the  codicil, 
by  me  and  affixed  to  this  my  will,"  and  and  subsequently  handed  a  copy  of  the 
there  was,  in  fact,  no  paper  affixed  to  the  will  to  one  of  his  executors,  identified  by 
will,  but  a  paper  was  produced  for  probate  a  memorandum  at  its  foot,  signed  by  the 
which  had  been  attached  by  the  testator  testator,  as  the  copy  referred  to  in  the 
to  a  previous  will,  Lord  Penzance  refused  codicil,  Lord  Penzance  held  that  the  copy 
probate  of  the  paper,  on  the  ground  that  of  the  will  was  sufficiently  referred  to  in 
it  was  not  within  the  description,  as  it  the  codicil  to  identify  it  with  certainty, 
was  not  affixed  to  the  will,  and,  therefore,  and  probate  of  it  was  granted, 
was  not  identified.  In  the  Goods  of  Gill,  i  Salmon  Falls  Mauuf.  Co.  v.  Goddard, 
L.  R.  2  Pr.  &  Div.  6.     See  In  the  Goods  14  How.  446. 


PART  IX.]       THE   ESSENTIAL   REQUISITES   OP  THE   MEMORANDUM.      655 

parol  evidence  was  admissible  to  show  that  M.  signed  the  memor- 
andum as  agent  for  the  plaintiffs,  as  well  as  to  show  the  meaning 
of  "12  mos.,"  and  of  "7|  and  8|;"  and,  that,  although,  there 
might  be  some  obscurity  in  the  terms  of  the  memorandum,  and 
intrinsic  difficulty  in  a  proper  understanding  of  them,  it  was  com- 
petent, under  the  circumstances  of  the  case,  to  refer  to  the  bill  of 
parcels  delivered,  for  the  purpose  of  explanation,  —  the  bill  of 
parcels  haviug  been  made  out  by  the  seller,  containing  his  under- 
standing of  the  terms  and  meaning  of  the  contract,  and  having 
been  received  and  acquiesced  in  by  the  buyer.  We  see  no  ground 
for  questioning  the  correctness  of  this  decision,  nor  of  any  of  thfe 
reasoning  which  it  contains ;  notwithstanding  some  question  has 
been  raised  as  to  the  latter,  by  a  learned  American  jurist.  We 
think,  that,  on  both  of  the  main  grounds  on  which  the  contract 
was  sustained,  other  well-decided  cases,  both  in  the  United  States 
and  England,  establish  the  same  principles  as  those  which  were 
acted  upon  in  this  case. 

The  case  of  Peirce  v.  Corf  ^  was  an  action  against  an  auctioneer 
for  negligence.  The  facts  were  that  the  plaintiff  sent  his  horse  to 
the  defendant  for  sale  at  auction.  In  a  catalogue  for  the  sale  pre- 
pared and  circulated  by  the  defendant,  the  plaintiff's  horse  was 
described,  and  was  numbered  "  Lot  49."  The  conditions  of  the 
sale  were  printed  on  the  catalogue ;  the  catalogue  and  the  condi- 
tions forming  one  document.  In  the  defendant's  sales  ledger,  the 
plaintiff's  horse  was  also  entered  with  a  description,  and  as  ^  Lot 
49;"  but  neither  the  catalogue  nor  the  conditions  of  sale  were  an- 
nexed or  affixed  to  the  sales  ledger,  nor  were  referred  to  therein, 
but  the  defendant  during  the  sale  held  in  his  hand  a  catalogue 
with  the  conditions  of  sale.  The  horse  was  knocked  down  to  one 
M.,  for  thirty-three  guineas,  and  the  price  and  the  purchaser's 
name  were  set  down  by  the  auctioneer's  clerk,  in  the  sales  ledger. 
M.,  having  taken  the  horse  for  a  test,  declined  to  keep  it,  and  re- 
turned it  with  the  following  note,  signed  by  him :  "  I  return  the 
grey  mare,  lot  49,  bought  at  your  sale  this  day,  as  not  being  steady 
in  harness  as  warranted."  M.  refusing  to  take  delivery  and  pay 
for  the  mare,  on  a  resale  by  the  plaintiff,  after  notice,  for  a  less 
sum,  the  plaintiff  sued  M.  for  damages,  and  was  nonsuited.  The 
plaintiff  then  brought  this  action  in  the  County  Court,  and  the 
judge  being  of  opinion  that  there  was  no  proof  of  a  sufficient  con- 
nection, by  reference  or  otherwise,  between  the  conditions  of  sale 
and  the  entries  in  the  sales  ledger,  gave  judgment  for  the  plain- 
tiff. On  appeal  to  the  Court  of  Queen's  Bench,  the  judgment  was 
affirmed,  the  court  holding  that,  although  M.'s  letter  might  be 

1  L.  R.  9  Q.  B.  210. 


656  COMMENTARIES   ON   SALES.  [BOOK   IV. 

connected  with  the  catalogue  and  the  conditions,  but  not  with 
the  sales  ledger,  as  neither  of  these  showed  the  price,  and  the 
conditions  could  not  be  connected  with  the  sales  ledger,  within 
the  limits  of  the  principle  laid  down  by  Lord  Denman,  C.  J., 
in  Dobell  v.  Hutchinson,^  or  within  that  of  Bird  v.  Boulter;  2 
the  facts  in  Peirce  v.  Corf^  not  showing  any  authority  in  M.  to 
the  auctioneer's  clerk  to  make  the  entry  on  behalf  of  the  highest 
bidder. 

In  Stanley  v.  Dowdeswell,*  where  there  was  an  offer  in  a  letter, 
by  the  plaintiff's  agent  to  the  defendant  (a  memorandum  of  the 
particulars  being  enclosed),  of  the  sale  of  leasehold  premises,  and 
a  letter  by  the  defendant,  in  reply,  which  letters,  it  was  held,  were 
sufficiently  connected,  and  were  sufficient  to  show  the  terms  of 
the  offer,  yet,  as  the  defendant,  in  his  letter,  referred  to  matters 
to  be  arranged  with  his  agent,  it  was  held  that,  following  Morris 
V.  Wilson,^  and  Shortrede  v.  Cheek,^  though  there  was  a  sufficient 
reference  in  the  defendant's  letter  to  the  memorandum  inclosed  to 
him  in  the  plaintiff's  letter,  to  let  in  oral  evidence  to  show  what 
that  memorandum  was,  and  so  to  connect  the  two  letters,  still, 
by  a  fair  interpretation  of  the  defendant's  letter,  it  was  plain  that 
his  mind  was  never  at  one  with  the  mind  of  the  plaintiff,  and 
that  there  was  no  sufficient  acceptance  of  the  offer  to  bind  him ; 
the  whole  matter  remaining  in  fieri. 

But  in  Leather  Cloth  Co.  v.  Hieronimus,'  where  the  plaintiffs 
had  orally  sold  goods  to  the  defendant,  but,  in  consequence  of  cir- 
cumstances having  changed,  shipped  them  by  a  different  route 
from  that  originally  contemplated  and  agreed  upon  between  the 
parties,  where  subsequent  letters  between  them  were  so  connected 
as  to  show  the  original  contract  they  had  made,  it  was  held  that 
this  was  sufficient  evidence  of  the  contract  to  satisfy  the  statute ; 
written  evidence  of  the  defendant's  acquiescence  in  the  mode  of 
performing  the  contract  not  being  necessary.^ 

Much  difference  of  opinion  existed  in  the  decision  of  the  impor- 
tant case  of  Rossiter  v.  Miller.^  There,  several  persons  interested 
in  a  particular  piece  of  land  authorized,  by  agreement  among 
themselves,  one  of  their  number,  W,,  to  dispose  of  it.  The  land 
was  divided  into  lots  and  a  plan  of  the  lots  made,  and  certain  con- 
ditions, on  which  the  land  might  be  let  or  sold,  were  printed  on 
the  plan.     M.,  an  intending  purchaser,  made  inquiries  of  W.  as  to 

»  3  A.  &  E.  at  p.  371.  8  1  A.  &  E.  57. 

2  4  B.  &  Ad.  443.  "<  L.  R.  10  Q.  B.  140. 

8  L.  R.  9  Q.  B.  210.    See  supra,  p.  625,  8  gge  ante,  p.  594,  et  seq.,  where  this 

et  seq.,  where  these  cases  are  examined.  latter  subject  is  fully  considered. 

*  L.  R.  10  C.  P.  102.  a  6  Cli.  Div.  648  ;  3  App.  Cas.  1124. 

8  5  Jur.  N.  s.  168. 


PART  IX.]       THE   ESSENTIAL   REQUISITES   OF   THE   MEMORAMDUM.      657 

the  sale  of  certain  lots.  W.  expressly  informed  him  that  he  must 
purchase  subject  to  the  conditions  stated  on  the  plan.  One  of 
these  conditions  required  that  a  purchaser  should  execute  a  con- 
tract embodying  the  conditions.  M.  offered  to  purchase  these  lots 
at  a  price  which  he  named.  W.  offered  to  lay  his  offer  before 
"  the  proprietors "  (without  naming  or  describing  them),  and 
very  shortly  afterwards  wrote  to  M.  that  he  had  done  so,  and 
(stating  the  conditions)  that  the  proprietors  had  accepted  his 
offer,  adding,  that  in  reducing  the  price  they  had  taken  into  con- 
sideration his  intention  of  soon  building  on  the  land,  an  intention 
which  of  course  they  wished  to  encourage.  W.  added  that  he  had 
instructed  the  solicitors  to  forward  to  M.  the  agreement  for  pur- 
chase. There  was,  in  fact,  nothing  in  the  conditions  which  bound 
a  purchaser  to  build,  though  there  were  provisions  which  assumed 
that  he  might  do  so,  and  which,  in  such  a  case,  regulated  the 
mode  of  proceeding,  M.  wrote  back,  in  answer,  that  he  could  not 
be  bound  to  build  at  any  given  time,  or  at  all,  —  that  the  subject 
had  better  be  reconsidered,  unless  W.  was  prepared  to  leave  him  to 
do  as  he  might  think  best.  W.  replied  that  the  acceptance  of  the 
offer  was  without  condition,  and  that  M.  was  free  to  do  what  he 
might  think  best.  The  formal  contract  was  prepared  and  sent  to 
M.,  but  he  refused  to  sign  it,  or  to  complete  the  purchase.  In  a 
suit  for  specific  performance  before  Sir  George  Jessel,  M.  R.,  the 
question  whether  the  letters  were  such  as  to  constitute  a  concluded 
contract  was  scarcely  adverted  to ;  the  question  chiefly  argued  be- 
ing whether  the  word  "  proprietors  "  was  a  sufficient  description 
within  the  Statute  of  Frauds.^  The  Master  of  the  Rolls  held  that 
the  description  was  sufficient,  and  decreed  specific  performance. 
On  appeal  to  the  Court  of  Appeal,^  it  was  held,  that  although  the 
word  "proprietors"  was  a  sufficient  description,  specific  perform- 
ance could  not  be  decreed,  for  that  on  the  true  construction  of  the 
documents  the  signing  of  a  formal  contract  was  a  condition  prece- 
dent to  the  parties  being  bound.  On  appeal  to  the  House  of 
Lords  ^  the  decision  of  the  Court  of  Appeal  was  reversed,  and  the 
order  of  the  Master  of  the  Rolls  was  restored,  the  House  of  Lords 
holding,  both  with  the  Master  of  the  Rolls  and  the  Court  of  Ap- 
peal, that  the  description  of  "  the  proprietors  "  was  sufficient,  and 
that  what  had  taken  place  by  the  correspondence  constituted  a 
complete  contract  between  the  parties ;  that  under  such  circum- 
stances the  execution  of  a  formal  deed  was  not  necessary ;  that 

1  See  Potter  v.  Duffield,  L.  R.   18  Eq.     don  &  Paris  Hotel  Co.,  L.  R.  20  Eq.  412  ; 
4;  Catling  v.  King,  5  Ch.  Div.  660 ;  Hood     Morris  v.  Wilson,  5  Jur,  N.  s.  168  ;  Skelton 
V.   Lord    Barrington,    L.  R.   6    Eq.   218;     v.  Cole,  1  De  G.  &  J.  587. 
Sale  V.  Lambert,  L.  R.  18  Eq.  1  ;  Thomas  2  Rossiter  v.  Miller,  5  Ch.  Div.  648. 

V.  Brown,  ]  Q.  B.  Div.  714;  Beer  v.  Lon-  ^  Rossiter  v.  Miller,  3  App.  Cas.  1124. 

VOL.  II.  43 


658 


COMMENTARIES   ON   SALES. 


[book  IV. 


the  reference  to  it  in  W.'s  letter  did  not  suspend  or  in  any  way 
affect  tlie  contract,  and  that  M.  was  bound  specifically  to  perform 
his  contract  of  purchase. ^ 


1  In  the  ultimate  decision  of  the  case, 
the  principle  laid  down  by  Lord  Westbury 
iu  Chinnock  v.  The  Marchioness  of  Ely, 
4  De  G.  J.  &  S.  638,  645,  was  acted  on, 
where  he  says  :  "I  entirely  accept  the 
doctrine  contended  for  by  the  plaintiff's 
counsel,  and  for  which  they  cited  the  case 
of  Fowle  V.  Freeman,  9  Ves.  351  ;  Ken- 
nedy V.  Lee,  3  Mer.  141,  and  Thomas  v. 
Dering,  1  Keen,  729,  which  establish  that 
if  there  had  been  a  final  agreement,  and 
the  terras  of  it  are  evidenced  in  a  manner 
to  satisfy  the  statute  of  frauds,  the  agree- 
ment shall  be  binding,  although  the  par- 
ties may  have  declared  that  the  writing  is 
to  serve  only  as  instructions  for  a  formal 
agreement,  or  althowjh  it  may  be  an  ex- 
press term  that  a  formal  agreement  shall 
be  prepared  and  signed  by  the  parties.  As 
soon  as  the  fact  is  established  of  the  final 
mutual  assent  of  the  parties  to  certain 
terms,  and  those  terms  are  evidenced  by 
any  writing  signed  by  the  party  to  be 
charged  or  his  agent  lawfully  authorized, 
there  exist  all  the  materials  which  this 
court  requires  to  make  a  legally  binding 
contract."  The  judges  of  the  Court  of 
Appeal  considered  that  the  facts  in  Rossi- 
ter  V.  Miller,  5  Ch.  Div.  648,  3  App.  Gas. 
1124,  came  within  the  language  of  Lord 
Westbury,  succeeding  the  above,  as  fol- 
lows :  "  But,  if  to  a  proposal  or  offer,  an 
assent  be  given  to  a  provision  as  to  a  con- 
tract, then  the  stipulation  as  to  the  con- 
tract is  a  term  of  the  assent,  and  there  is 
no  agreement  independent  of  that  stipula- 
tion. And  this  appears  to  me  to  be  the 
real  state  of  the  case  before  me;  for  i  am 
clearly  of  opinion  that  the  true  and  fair 
meaning  and  legal  effect  of  the  letter  of 
the  19th  of  November  may  be  expressed 
in  these  words  :  '  I  will  go  on  with  the 
treaty  for  the  sale  to  you  of  ray  house,  and 
for  that  purpose  will  send  you  the  form  of 
the  contract  which  I  am  willing  to  enter 
into.'  I  take,  therefore,  the  letter  of  the 
19th  of  November  either  as  a  conditional 
acceptance  of  the  plaintiff's  terms,  subject 
to  the  draft  contract  being  agreed  to,  or  as 
an  exftression  of  willingness  to  continue 
the  negotiation,  and  for  that  purpose  to 
propose  a  form  of  agreement."  Dealing 
with  these  two  entirely  consistent  propo- 
sitions, Lord  Cairns,  L.  C,  in  Rossiter  v. 
Miller,  8  App.  Cas.  at  p.  1139,  said,  re- 
ferring more  particularly  to  the  latter  of 
the  above  two  propositions  :  "I  can  only 
say  that  I  am  willing  to  accept  ever}'  word 
of  Lord  Westbury  as  there  given.  I  as- 
sume that  the  construction  put  by  him 


upon  the  letter  I  have  quoted  was  a  proper 
construction,  and  I  entirely  acquiesce  in 
what  he  says,  that  if  j'ou  find,  not  an 
unqualified  acceptance  of  a  contract,  but 
an  acceptance  subject  to  the  condition 
that  an  agreement  is  to  be  prepared  and 
agreed  upon  between  the  parties,  and  until 
tljat  condition  is  fulfilled  no  contract  is  to 
arise,  then  undoubtedly  you  cannot,  upon 
a  correspondence  of  tliat  kind,  find  a  con- 
cluded contract.  But,  I  repeat,  it  appears 
to  me  that  in  the  present  case  there  is 
nothing  of  that  kind.  There  is  a  clear 
offer  and  a  clear  acceptance.  There  is  no 
condition  whatever  suspending  the  opera- 
tion of  that  acceptance  until  a  contract  of 
a  more  formal  kind  is  to  be  made." 

This,  we  think,  is  a  simple,  clear,  and 
conclusi%'e  statement  of  the  law  applicable 
to  this  class  of  cases  ;  as  is  also  the  follow- 
ing from  Lord  Hatherley  :  "If  you  can 
find  the  true  and  important  ingredients 
of  an  agreement  in  that  which  has  taken 
place  between  the  parties  in  the  coui-se  of 
a  correspondence,  then,  although  the  cor- 
respondence may  not  set  forth,  in  a  form 
which  a  solicitor  would  adopt  if  he  were 
instructed  to  draw  an  agreement  in  writ- 
ing, that  which  is  the  agreement  between 
the  parties,  yet,  if  the  parties  to  the  agi'ee- 
ment,  the  thing  to  be  sold,  the  price  to  be 
paid,  and  all  these  matters,  be  clearly  and 
distinctly  stated,  although  only  by  letter, 
an  acceptance  clearly  by  letter  will  not 
the  less  constitute  an  agreement  in  the 
full  sense  between  the  parties,  merely  be- 
cause that  letter  may  say,  We  will  have 
this  agreement  put  into  due  form  by  a 
.solicitor.  If  it  is  stated  in  so  many  plain 
and  express  terms  (and  in  Chinnock  v. 
The  Marchioness  of  Ely,  4  De  G.  J.  &  S. 
638,  that  was  the  ground  on  which  that 
case  proceeded)  that  one  of  the  very  terms 
of  the  agreement  itself  was  that  it  should 
not  be  concluded  by  the  agent  employed 
in  the  first  place  to  enter  into  the  nego- 
tiation, and  that  it  should  not  be  a  con- 
cluded agreement  until  a  solicitor  inter- 
vened and  drew  a  formal  agreement ;  if 
you  find  that  to  be  a  term  of  the  agree- 
ment itself,  well  and  good  ;  if  not,  the 
agreement  stands.  Botli  parties  may  de- 
sire that  it  shall  be  put  into  a  formal 
shape  by  a  solicitor,  who,  in  that  case, 
will  not  be  able  to  vary  the  agreement 
either  on  one  side  or  the  other,  but  only 
to  put  into  a  more  formal  and  professional 
shape  the  agreement  which  had  been  com- 
pletely formed  with  unity  of  purpose  with 
reference  to  the  sale  and  purchase  by  the 


PART  IX.]       THE   ESSENTIAL   REQUISITES   OP   THE   MEMORANDUM.      659 

The  clauses  in  the  conditions  on  which  the  difficulty  in  the 
main  question  in  Rossiter  v.  Miller  ^  arose,  are  in  the  eighth  condi- 
tion, and  are  as  follows  :  "  Each  purchaser^  on  completing  Jus  pur- 
chase^ to  execute  a  deed  of  covenant  embodying  the  above  rules 
and  stipulations,  and  providing  for  their  due  performance  mutually 
by  such  purchaser  and  the  vendors.  .  .  .  Each  purchaser  will  be 
required  to  sign  a  contract  embodying  the  foregoing  conditions, 
and  providing  for  the  payment  of  a  deposit  at  the  rate  of  XIO  per 
cent,  on  the  amount  of  the  purchase-money,  and  for  the  completion 
of  the  purchase  at  the  expiration  of  not  exceeding  two  months 
from  the  date  of  the  contract.  The  cost  of  such  contract  will  be 
included  in  the  fixed  charge  for  the  conveyance  provided  for  by 
the  first  stipulation."  The  first  clause  referred  to  provided  that, 
"  The  proprietors  will  furnish  a  conveyance  exclusive  of  stamp 
duties,  with  a  title  commencing  from  Oct.  30, 1797,  for  the  sum  of 
£2  2s.  for  each  plot.  This  to  include  the  lithographed  abstract, 
the  deed  of  covenant  embodied  in  the  conveyance,  and  the  con- 
tract hereinafter  mentioned.  Should  any  purchaser  prefer  em- 
ploying his  own  solicitor  he  can  do  so  at  his  own  expense,  paying 
the  vendor's  solicitor  the  sum  of  <£2  2s.  for  the  abstract  of  title." 
The  correspondence  clearly  showing  an  agreement  for  the  pur- 
chase of  the  specified  lots,  according  to  the  conditions,  and  satis- 
fying the  Statute  of  Frauds,   the  error  of  the  Court  of  Appeal 

two  parties  to  the  contract."  Ibid,  at  assent  of  the  parties,  so  that  those  who 
p.  1143.  draw  up  the  formal  agreement  have  not 
The  following  from  the  opinions  of  the  power  to  varj'  the  terms  already  set- 
Lord  Blackburn  and  Lord  Gordon  (at  tied,  I  think  the  contract  is  complete." 
pp.  1151,  1154),  is  equall}'  valuable  and  And  Lord  Gordon  :  "I  concur  in  think- 
conclusive.  Said  the  former:  "I  quite  ing  that  the  judgment  come  to  by  the 
agree  with  the  Lords  Justices  that  (wholly  Lords  Justices  of  Appeal  is  erroneous.  I 
independent  of  the  statute  of  frauds)  it  is  think  the  correspondence  founded  on,  con- 
a  necessary  part  of  the  plaintiff's  case  to  stituted  a  completed  contract  for  the  pur- 
show  that  the  two  parties  had  come  to  a  chase  and  sale  of  the  lots  in  question,  at 
final  and  complete  agreement ;  for  if  not,  the  price  stipulated,  and  on  the  condi- 
there  was  no  contract.  So  long  as  they  tions  specified  in  the  conditions  and  stipu- 
are  only  in  negotiation,  either  party  may  lations  printed  on  the  plan.  No  doubt 
retract ;  and  though  the  parties  may  have  those  conditions  provided  for  a  subsequent 
agreed  on  all  the  cardinal  points  of  the  and  formal  deed  being  executed  by  the 
intended  contract,  yet,  if  some  particulars  parties  ;  but  that  deed  was  only  for  the 
essential  to  the  agreement  still  remain  to  purpose  of  more  foniially  setting  forth 
be  settled  afterwards,  thei-e  is  no  contract,  the  conditions  upon  which  the  parties  had 
The  parties  in  such  a  case  are  still  only  in  agreed.  If  there  was  anything  introduced 
negotiation.  But  the  mere  fact  that  the  into  the  proposed  deed  which  the  pur- 
parties  have  expressly  stipulated  that  chaser  considered  beyond  the  terms  and 
there  shall  afterwards  be  a  formal  agree-  conditions  on  which  he  purchased  the 
ment  prepared,  embodpng  the  terms,  property,  he  would  have  been  entitled  to 
which  shall  be  signed  by  the  parties,  object ;  and,  if  necessary,  the  proper  terms 
does  not,  by  itself,  show  that  they  con-  of  the  deed  could  have  been  adjusted  at 
tinue  merely  in  negotiation.  It  is  a  the  sight  of  a  court  of  law.  But  in  mj' 
matter  to  be  taken  into  account  in  con-  view  th£  contract  between  the  parties  was 
struing  the  evidence  and  determining  concluded  by  the  correspondence  and  the 
whether  the  parties  have  really  come  to  conditions  which  were  referred  to  and  eni- 
a  final  agreement  or  not.  But  as  soon  as  bodied  in  it." 
the  fact  is  established  of  the  final  mutual  i  5  Ch.  Div.  618  ;   3  App.  Cas.  1124. 


660  COMMENTARIES   ON   SALES.  [bOOK   IV. 

arose  from  treating  the  eighth  condition  as  preventing  that 
which,  clearly,  otherwise  was  an  agreement  in  writing  to  "  a  set 
of  terms,"  and  constituting  a  contract,  from  constituting  a  con- 
tract, because  of  the  existence  of  such  eighth  condition.  Whereas, 
in  fact,  the  correspondence  evidenced  the  purchase  by  the  defend- 
ant of  the  specified  lots,  on  the  whole  of  the  conditions,  and 
showed  a  final  agreement  for  such  purchase  on  the  whole  of  such 
terms,  including  the  first  and  eighth,  as  well  as  the  other  condi- 
tions. The  contrary  entirely  untenable  assumption  was  at  the 
base  of  the  error  of  the  judges  of  the  Court  of  Appeal,  as  is  well 
shown  by  the  conclusion  of  the  decision  of  Lord  Coleridge,  C.  J., 
where  he  says :  "  If  a  set  of  terms  are  agreed  upon  in  writing,  they 
constitute  a  contract,  although  it  may  be  the  intention  of  the  par- 
ties that  they  should  be  put  into  a  more  formal  shape  ;  but  here  a 
set  of  terms  never  was  finally  agreed  to,  and  the  defendant  cannot 
be  held  to  be  bound."  ^  On  the  contrary,  the  House  of  Lords  held, 
and  the  correspondence  shows,  too  clearly,  we  think,  for  doubt  or 
question,  that  a  set  of  terms  was  agreed  to,  which  did  constitute 
a  contract,  and,  therefore,  the  plaintiffs  had  a  right  to  a  decree 
for  a  specific  performance  of  the  whole  contra.ctf  ineluding  the  first 
and  eighth  as  well  as  the  other  conditions.^ 

Winn  V.  Bull  ^  still  further  exemplifies  the  principle,  that 
where  you  have  a  proposal  or  agreement  made  in  writing  ex- 
pressed to  be  subject  to  a  formal  contract  being  prepared,  it  means 
what  it  says ;  it  is  subject  to  and  is  dependent  upon  a  formal  con- 
tract being  prepared.  But  when  it  is  not  expressly  stated  to  be 
subject  to  a  formal  contract,  it  becomes  a  question  of  construction, 
whether  the  parties  intended  that  the  terms  agreed  on  should 
merely  be  put  into  form,  or  whether  they  should  be  subject  to  a 
new  agreement  the  terms  of  which  are  not  expressed  in  detail.* 
In  this  case,  under  an  agreement  in  writing  to  let  and  take  a  lease 
of  premises  specifically  named  ;  the  premises,  the  parties,  the  com- 
mencement and  end  of  the   terra,  the   rental,  and   other  terms, 

1  5  Ch.  Div.  at  p.  658.  Potter  v.  Duffield,  L.  R.  18  Eq.  4  ;  Com- 

2  See  further,  Peek  v.  The  North  Staf-  niins  v.  Scott,  L.  R.  20  Eq.  11  ;  Beer  v. 
foriishire  Ry.  Co.,  10  H.  L.  Cas.  473  ;  London  &  Paris  Hotel  Co.,  L.  R.  20  Eq. 
Smith  V.  Webster,  3  Ch.  Div.  49  ;  Hony-  412;  Catling  v.  King,  5  Ch.  Div.  660  ; 
man  v.  Marryatt,  6  H.  L.  Cas.  112  ;  Fowle  Brogden  v.  The  Metropolitan  Rv.  Co., 
V.  Freeman,  9  Ves.  351  ;  Kennedy  v.  Lee,  2  App.  Cas.  666  ;  Mevnell  r.  Siirtees, 
3  Mer.  441  ;  Thomas  v.  Dering,  1  Keen,  3  Sm.  &  Giff.  101  ;  Marvin  v.  Wallis, 
729  ;  Glenszall  v.  Barnard,  1  Keen,  796  ;  6  E.  &  B.  726  ;  Chinnook  v.  The  Mar- 
nom.  Glengall  v.  Thvnne,  2  H.  L.  Cas.  chioness  of  Ely,  4  De  G.  J.  &  S.  638  ; 
131  ;  Skinner  v.  McDonall,  2  De  G.  &  Winn  v.  Bull,  7  Ch.  Div.  29  ;  Skclton  v. 
Sm.  265  ;  Crossley  v.  Maycock,  L.  R.  18  Cole,  1  De  G.  &  J.  287  ;  Thomas  c.  Brown, 
Eq.   180  ;  Ridgway  v.  Wharton,  6  H.  L.  1  Q.  B.  Div.  714. 

Cas.  238  ;    Bonnewell  v.  Jenkins,  8  Ch.  8  7  ch.  Div.  20. 

Div.  70  ;  Hood  v.  Barrington,  L.  R.  6  Eq.  *  Per  Jessel,  M.  R.,  lb.  at  p.  32. 

218  ;  Sale  t;.  Lambert,  L.  R.  18  Eq.  1  ; 


PART  IX.]      THE  ESSENTIAL  REQUISITES   OP  THE   MEMORANDUM.      661 

were  sufficiently  named,  so  as  to  have  constituted  the  writing  a 
completed  lease,  but  for  the  clause  with  which  the  writing  con- 
cluded :  "  This  agreement  is  made  subject  to  the  preparation  and 
approval  of  a  formal  contract."  Subsequently,  disputes  arose  be- 
tween the  parties,  in  the  preparation  of  the  formal  contract,  as  to 
the  insertion  of  terms  not  provided  for  in  the  original  writing, 
which  resulted  in  the  defendant's  refusing  to  accept  a  lease  at  all. 
In  an  action  for  specific  performance  of  the  agreement,  Jessel, 
M.  R.,  held  that  the  Statute  of  Frauds  was  not  satisfied.  The  dis- 
tinctive principles  were  held  to  be,  (1)  if  in  the  case  of  a  proposed 
sale  or  lease  of  an  estate  two  persons  agree  to  all  the  terms  and 
say  "  We  will  have  the  terms  put  into  form,"  then,  all  the  terms 
being  put  into  writing  and  agreed  to,  there  is  a  contract.  But, 
(2)  if  two  persons  agree  in  writing  that  up  to  a  certain  point  the 
terms  shall  be  the  terms  of  the  contract,  but  that  the  minor  terms 
shall  be  submitted  to  a  solicitor,  and  shall  be  such  as  are  approved 
of  by  him,  then  there  is  no  contract,  because  all  the  terras  have  not 
been  settled.  This  latter  position  is  extra-judicial,  and  is  open  to 
question. 

In  Winn  v.  Bull  ^  the  agreement  was  made  "  subject  to  the  prep- 
aration and  approval  of  a  formal  contract."  And,  clearly,  until 
such  formal  contract  had  been  prepared  and  approved,  there  was 
no  approved  formal  contract.  But  this,  obviously,  is  quite  differ- 
ent from  what  it  would  have  been,  if,  after  having  agreed  in  writ- 
ing to  the  main  terms  of  the  contract,  the  writing  had  provided, 
as  suggested  by  Jessel,  M.  R.,  in  his  second  position  as  above, 
that  the  minor  terms  should  be  submitted  to  a  solicitor,  and  should 
be  such  as  ivere  approved  of  by  him.  In  this  case,  as  in  the  previ- 
ous case  put  by  Jessel,  M.  R.,  we  think  it  is  clear  that  here  too 
"  there  is  a  contract."  Certainly,  Winn  v.  BulP  is  very  far  from 
being  an  authority  to  the  contrary. 

The  doubt  which  we  have  raised  above  as  to  the  exact  critical 
correctness  of  the  latter  of  the  two  views  expressed  by  Jessel, 
M.  R.,  in  Winn  v.  Bull,  as  quoted  above,  is  fully  sustained  by  the 
decision  of  the  Court  of  Appeal,  affirming  the  judgment  of  Fry, 
J.,  in  Bonnewell  v.  Jenkins.^  There  the  plaintiff  made  an  offer  in 
writing  for  the  purchase  of  specified  leasehold  premises,  the  writ- 
ing containing  the  following  clause :  "  This  offer  is  made  subject 
to  the  conditions  of  the  lease  being  modified  to  my  solicitor's  sat- 
isfaction, which  I  am  informed  can  be  done."  This  offer  was  ac- 
cepted in  writing  by  the  defendant's  agent.  No  further  contract 
was  signed.     The  defendant  procured  the  alteration  in  the  lease 

1  7  Ch.  Div.  29.  «  8  Cb.  Div.  70. 

"  Ibid. 


662  COMMENTARIES   ON    SALES.  [BOOK   IV. 

to  the  satisfaction  of  the  plaintiff's  solicitor.  Disputes  having 
arisen,  the  vendor  ultimately  refused  to  complete.  In  an  action 
by  the  purchaser  for  specific  performance,  Fry,  J,,  held,  that  the 
letters  made  a  binding  contract,  and  his  decision  was  affirmed  by 
the  Court  of  Appeal.  The  point  made  by  Jessel,  M.  R.,  in  Winn 
V.  Bull,^  that  because  it  was  expressed  that  certain  conditions  had 
to  be  modified  to  the  satisfaction  of  the  purchaser's  solicitor,  that, 
upon  this  being  done,  the  writings  still  showed  no  contract,  was 
not  even  contended  for  in  Bonnewell  v.  Jenkins,^  and,  as  we  have 
intimated  above,  is,  we  think  a  clearly  unsound  ohiter  dictum,  and 
is  directly  repudiated  by  the  holding  in  this  latter  case.  The  point 
made  in  this  case  was  that  as  the  defendant's  agent,  in  his  accept- 
ance of  the  plaintiff's  offer,  had  added,  "  We  have  asked  Mr.  J.'s 
solicitor  to  prepare  contract,"  that  therefore  the  writings  them- 
selves did  not  show  a  contract.  But,  on  this  point,  the  affirmed 
decision  of  Fry,  J.,  was  otherwise;  James,  L.  J.,  well  saying: 
"  Whether  there  is  a  binding  contract  or  not  depends  on  the  con- 
struction of  two  letters.  It  is  settled  law  that  a  contract  may  be 
made  by  letters,  and  that  the  mere  reference  in  them  to  a  future 
formal  contract  will  not  prevent  their  constituting  a  binding  bar- 
gain. There  are  indeed  cases,  such  as  Rossiter  v.  Miller,*^  where 
the  court  may  hold  that  the  reference  to  the  future  contract  is 
such  as  to  show  that  the  parties  did  not  intend  to  be  bound  until 
it  was  signed,  but  such  cases  depend  on  their  own  special  circum- 
stances. Here  there  is  an  unconditional  acceptance  by  the  de- 
fendant of  the  plaintiff's  offer,  and  the  reference  to  the  preparation 
of  a  formal  contract  appears  to  me  to  be  immaterial." 

In  Hudson  v.  Buck,*  where,  in  a  contract  for  the  purchase  of  a 
lease,  it  was  stated  that  it  was  "  made  subject  to  the  approval  of 
the  purchaser's  solicitor,"  it  was  held  that  this  was  an  essential 
term  in  the  contract,  and  that  there  would  not  be  a  decree  for  spe- 
cific performance,  unless  such  approval  was  unreasonably  refused.*'' 

And  in  Hussey  v.  Horne-Payne,^  where  the  plaintiff's  agent,  af- 
ter having  written  an  acceptance  of  the  defendant's  offer  to  sell  an 
estate,  added,  "  Subject  to  the  title  being  approved  by  our  solicit- 
ors," the  Court  of  Appeal  held  that  this  imported  a  new  term  into 
the  contract ;  that,  therefore,  the  defendant's  offer  had  not  been 
accepted,  and  that  specific  performance  of  the  contract  could  not 
be  enforced.  On  appeal  to  the  House  of  Lords,"  the  case  went  off 
on  another  ground,  but  Earl  Cairns,  L.  C,  expressed  a  doubt,  if  it 

1  7  Ch.  Div.  29.  5  And  see  Williams  v.  Edwards,  2  Sim. 

2  8  Ch.  Div.  70.  78. 

8  5  Ch.  Div.  648.  6  8  Ch.  Div.  670. 

*  7  Ch.  Div.  683.  "^  Hussey  v.  Horne-Pavne,  4  App.  Cas. 

311. 


PART   IX.]       THE   ESSENTIAL   REQUISITES   OP   THE   MEMORANDUM.      663 

liad  been  necessary  to  decide  that  question,  whether  that  term 
meant  anything  more  —  subject  to  any  objection  which  the 
solicitor  made  being  submitted  to  decision  by  a  proper  court,  if 
the  objection  was  not  agreed  to  —  than  a  guard  against  its  being 
supposed  that  the  title  was  to  be  accepted  without  investigation ; 
as  meaning  in  fact  that  the  title  must  be  investigated  and  ap- 
proved of  in  the  usual  way,  which  would  be  by  the  solicitor  of  the 
purchaser. 

In  Hussey  v.  Horne-Payne,^  the  question  really  involved  was  as 
to  whether  in  a  series  of  letters  there  was  a  sufficient  note  or  mem- 
orandum of  the  contract  to  satisfy  the  Statute  of  Frauds.  Malins, 
V.  C,  held  that  a  complete  contract  was  shown  by  two  letters  be- 
tween the  parties,  and  that  the  after  correspondence  between  the 
parties  showed  an  attempt  to  abandon  it  on  the  one  part,  and  a  re- 
fusal to  do  so  on  the  other  ;  not  amounting  to  a  rescission  of  the 
contract.  This  decision  was  reversed  by  the  Court  of  Appeal,  the 
Lord  Justices  being  of  the  opinion  that  the  second  letter  intro- 
duced a  new  term  which  required  acceptance,  and  that  there  was, 
therefore,  no  note  or  memorandum  of  a  complete  contract  shown. 
On  appeal  to  the  House  of  Lords,^  less  stress  was  placed  on  the 
language  relied  on  in  the  Court  of  Appeal,  as  "  a  new  term,"  but 
the  House  of  Lords  held,  that,  where  a  court  has  to  find  a  contract 
in  a  correspondence,  and  not  in  one  particular  note  or  memoran- 
dum formally  signed,  the  whole  of  that  which  has  passed  between 
the  parties  must  be  taken  into  consideration  ;  and  applying  that 
rule  to  this  case,  though  the  first  two  letters  of  the  correspond- 
ence seemed  to  constitute  a  complete  contract,  the  House  of  Lords, 
upon  the  whole  of  what  had  passed  in  letters  and  conversation, 
came  to  the  conclusion  that  no  concluded  and  complete  contract 
had  been  established.^ 

Where,  in  the  written  acceptance  of  a  tender,  there  is  an  intima- 

1  8  Ch.  Div.  670.  the    agreement  by  which  they  were    to 

2  4  App.  Cas.  311.  be  bound  ;  and  it  appears  to  me  that  no 
*  Lord  Selborne's  observations  on  this     such  contract  ought  to  be  held  established, 

point  are  deserving  of  quotation,  as  fol-  even  by  letters  which  would  otherwise  be 
lows:  "  I  cannot  agree  with  what  appeared  sufficient  for  the  purpose,  if  it  is  clear, 
to  be  suggested  by  part  of  the  appellant's  upon  the  facts,  that  there  were  other  con- 
argument  that,  because  two  letters  were  ditions  of  the  intended  contract  beyond 
written,  by  which  the  conditions  required  and  besides  those  expressed  in  the  lettera, 
by  the  statute  of  frauds  would  have  been  which  were  still  in  a  state  of  negotiation 
satisfied  if  there  were  nothing  outside  those  only,  and  without  the  settlement  of  which 
letters  to  the  contrary,  therefore  there  is  the  parties  had  no  idea  of  conchnling  any 
here  such  a  concluded  agreement  as  a  court  agreement.  I  adhere  to  what  I  said  when 
of  equity  ought  sjiecifically  to  perform  sitting  in  the  Court  of  Chaiu'ery,  in  the 
without  regard  to  what  preceded  or  what  case  of  Jervis  v.  Berridge  (8  Cli.  Ap.  at 
followed.  The  observation  has  often  been  p.  360),  that  the  statute  of  frauds  'is  a 
made  that  a  contract  estaV)lished  by  letters  weapon  of  defence,  not  offence,'  and  '  does 
may  sometimes  bind  parties  who,  when  not  make  any  signed  instrument  a  valid 
they  wrote  those  letters,  did  not  imagine  contract  by  reason  of  the  signature,  if  it  is 
that  they  were  finally  setting  the  terms  of  not  such  according  to  the  good  faith  and 


664  COMMENTARIES   ON   SALES.  [BOOK   IT. 

tion  that  a  contract  will  be  afterwards  prepared,  that  does  not  pre- 
vent the  parties  from  becoming  bound  to  perform  the  terms  in  the 
tender  and  acceptance  respectively  mentioned,  if  the  intention  of 
the  parties  bv  the  tender  and  acceptance  was  thereby  to  enter  into 
an  agreement,  and  if  the  reference  to  the  preparation  of  the  con- 
tract was  made  merely  for  the  purpose  of  expressing  that  the 
agreement  already  arrived  at  would  be  put  in  more  formal  lan- 
guage. The  question  is  the  same  as  has  come  up  so  frequently  in 
connection  with  that  as  to  whether  an  agreement  for  a  lease  may 
not  be  treated  as  a  lease  where  the  agreement  contains  all  the 
terms  necessary  to  constitute  it  a  lease.  It  is  simply  a  question 
of  the  intention  of  the  parties,  and  where  the  offer  and  acceptance 
are  in  writing,  it  is  a  question  for  the  court,  in  construing  the  doc- 
uments, to  decide  whether  in  point  of  law  there  is  enough  in  them 
to  constitute  a  contract,  and,  if  so,  the  rule  of  construction  is  that 
on  the  acceptance  of  an  offer,  without  introducing  new  terms,  the 
expression  of  a  wish  for  a  more  formal  instrument  is  not  sufficient 
to  enable  a  court  of  justice  to  hold  that  a  final  agreement  has  not 
been  arrived  at.^ 

The  defendant,  in  Long  v.  Millar,^  was  an  estate  agent,  and  was 
employed  by  one  G.  to  sell  three  plots  of  land  for  £310.  The 
plaintiff  agreed  with  the  defendant  to  buy  the  property  for  .£310, 
and  paid  a  deposit  of  X31  in  respect  of  the  purchase.  The  plain- 
tiff signed  the  following  document :  "  I  hereby  agree  to  purchase 
the  three  plots  (forty  feet  frontage)  of  freehold  land  in  R.  Street, 
Hammersmith,  for  X310,  and  I  agree  to  pay  as  a  deposit  and  in 
part  payment  of  the  aforesaid  purchase-money  the  sum  of  X31, 
and  to  complete  the  purchase  and  pay  the  balance  of  the  purchase- 
money  on  or  before  October  5,  next."  The  defendant  signed  a 
receipt  for  the  £31, "as  a  deposit  on  the  purchase  of  three  plots  of 
land  at  Hammersmith."  G.,  however,  in  the  mean  time,  having 
made  an  expenditure  on  the  property,  refused  to  complete  the 
purchase  for  £310,  and  required  £450  for  it.  The  defendant  of- 
fered to  return  the  deposit,  but  the  plaintiff  insisted  upon  having 
the  plots  of  land  for  £310.  In  an  action  for  damages  for  breach 
of  contract,  the  jury  found  inter  alia  that  the  defendant  sold  as 
principal,  and  there  was  judgment  for  the  plaintiff.     The  Common 

real  intention  of  the  parties  ; '  and  I  think  tended   agreement   which   were    of   great 

it  especially  important  to  keep  that  prin-  practical  importance,  and  were  so  regarded 

ciple  in  view  when,  as  in  the  present  case,  on  both  sides,  then  remained  unsettled, 

it  is  attempted  to  draw  a  line  at  one  point  and  were  still  the  subject  of  negotiation 

of  a  negotiation  conducted  partly  by  cor-  between  them."     Hussey  v.  Home-Payne, 

respondence   and  partly   at   meetings  be-  4  App.  Cas.  at  p.  322. 
tween  the  parties,  without  regard  to  the  i  Lewis  v.  Brass,  3  Q.  B.  Div.  667. 

sequel  of  the  negotiations,   wliicli  to  my  ^  4  c.  P.  Div.  450. 

mind  plainly  shows  that  terras  of  the  in- 


PART  IX.]      THE    ESSENTIAL   REQUISITES   OF   THE   MEMORANDUM.      665 

Pleas  Division  on  appeal  ordered  a  new  trial,  on  the  ground  that 
the  finding  was  against  the  weight  of  evidence.  Their  decision 
was  sustained  bj  the  Court  of  Appeal,  on  that  ground  ;  but  it  was 
held,  by  the  Court  of  Appeal,  that  the  two  documents  taken  to- 
gether satisfied  the  statute.  Baggallay,  L.  J.,  said  :  "  The  true  prin- 
ciple is  that  there  must  be  a  writing  to  which  the  document  signed 
by  the  party  to  be  charged  can  refer,  but  that  this  writing  may  be 
identified  by  verbal  evidence.  I  think  that  in  the  present  case,  by 
the  words  '  purchase  of  three  plots  of  land '  the  receipt  sufficiently 
refers  to  the  document  signed  by  the  plaintiff.  Therefore  the  con- 
tract seems  to  me  to  be  complete."  And  Bramwell,  L.  J.,  holding 
the  same  view,  gave  the  following  illustration  :  "  Suppose  that  A. 
writes  to  B.,  saying  that  he  will  give  XIOOO  for  B.'s  estate,  and  at 
the  same  time  states  the  terms  in  detail,  and  suppose  that  B.  sim- 
ply writes  back  in  return, '  I  accept  your  offer.'  In  that  case  there 
may  be  an  identification  of  the  documents  by  parol  evidence,  and 
it  may  be  shown  that  the  offer  alluded  to  by  B.  is  that  made  by 
A.,  without  infringing  the  Statute  of  Frauds,  which  requires  a  note 
or  memorandum  in  writing." 

The  plaintiff  had  signed  a  memorandum  setting  forth  the  terms 
of  a  contract  by  which  the  plaintiff  agreed  to  let  a  carriage  to  the 
defendant  for  the  period  of  a  year.  The  defendant,  in  a  subse- 
quent letter  to  the  plaintiff,  signed  by  the  defendant,  referred  to 
"  our  arrangement  for  the  hire  of  your  carriage."  There  was  no 
other  arrangement  for  the  hire  of  a  carriage  than  that  the  terms 
of  which  were  contained  in  the. memorandum  signed  by  the  plain- 
tiff. It  was  held,  that  the  defendant's  letter  sufficiently  referred 
to  the  document  containing  the  terms  of  the  contract,  to  consti- 
tute a  good  memorandum  within  the  fourth  section  of  the  Statute 
of  Frauds.^ 

In  Shardlow  v.  Cotterell  ^  the  plaintiff  claimed  specific  perform- 
ance of  a  contract  to  purchase  a  house  and  premises  sold  by- 
auction.  After  the  sale,  the  auctioneer  signed  the  following  mem- 
orandum at  the  foot  of  the  conditions  :  "  The  property  duly  sold  to 
A.  Shardlow,  butcher,  Pinxton,  and  deposit  paid  at  close  of  sale." 
And  he  also  signed  this  receipt :  "  Pinxton,  March  29,  1880.  Re- 
ceived of  A.  Shardlow,  the  sum  of  £21  as  deposit  on  property 
purchased  at  £420  at  Sun  Inn,  Pinxton,  on  the  above  date,  Mr.  G. 
Cotterell,  owner."  The  Statute  of  Frauds  was  set  up  in  defence. 
The  conditions  contained  no  description  of  the  property  sold,  but 
posters  had  been  put  up  describing  the  property  to  be  sold  on 
March  29,  at  the  Sun  Inn.  Held,  that  the  receipt,  but  not  the 
poster,  might  be  read  with  the  memorandum,  but,  that,  without  the 

1  Cave  V.  Hastings,  7  Q.  B.  Div.  125.  ^  is  Cli.  Div.  280. 


666  COMMENTARIES   ON   SALES.  [BOOK  IV. 

poster,  there  was  not  a  sufficiently  definite  description  of  the  prop- 
ert}'^  sold  and  purchased  to  enable  the  court  to  receive  parol  evi- 
dence of  what  the  property  consisted,  and  that,  consequently,  the 
Statute  of  Frauds  was  a  good  defence  to  the  action.^ 

Two  or  more  documents  which  do  not  refer  to  each  other,  but 
do  refer  to  the  same  parol  contract,  and  which,  when  taken  to- 
gether, contain  all  the  terms  of  the  parol  contract,  may  together 
constitute  a  sufficient  memorandum  within  the  Statute  of  Frauds. 
On  Sept.  22,  1882,  the  defendant  verbally  agreed  with  the  plain- 
tiff to  sell  him  her  share  in  certain  property  for  .£200,  and  signed 
and  gave  to  him  the  following  receipt,  — "  Sept.  22,  1882.  Re- 
ceived of  J.  Studds  one  pound  [on  account  was  probably  meant]  of 
my  sliare  in  the  Barrett's  Grove  property  the  sum  of  two  hundred 
pounds."  No  time  was  fixed  for  completion,  and  no  abstract  was 
delivered,  and,  on  March  19,  1883,  the  defendant  wrote  to  plain- 
tiff:  "Mr.  Studds:  Sir,  —  If  the  balance  of  .£199  on  account  of 
the  purchase  of  my  share  of  the  property  be  not  paid  on  or  before 
the  22d  instant,  I  shall  consider  the  agreement  (made  Sept.  22, 
1882)  not  any  longer  binding."  It  was  held,  that  the  word  "  bal- 
ance" in  the  letter  sufficiently  referred  to  the  receipt  to  enable  the 
two  documents  to  be  read  together,  and  that  they  constituted  a 
sufficient  memorandum  within  the  Statute  of  Frauds ;  and,  also, 
that  even  if  the  word  "  balance  "  was  not  sufficient  to  connect  the 
two  documents,  yet  that,  as  they  both  referred  to  the  same  parol 
contract,   all  of   which  was  contained  in  one  or  other  of   them, 

'  In  this  case,  Kay,  J.,  made  an  elab-  187  ;  Ogilvie  v.  Foljambe,  3  Mer.  53  ; 
orate  examination  of  the  authorities,  his  Bauraann  v.  James,  L.  R.  3  Ch.  508  ;  Mac- 
criticism  of  which  shows  his  well-founded  Donald  v.  Longbottom,  1  E.  &  E.  977  ; 
dissatisfaction  with  many  of  them,  and  Owen  v.  Thomas,  3  My.  &  K.  353  ;  Ros- 
concludes  thus:  "I  am  not  disposed  to  siter  v.  Miller,  3  App.  Cas.  1124  ;  Catling 
carry  the  law  on  this  subject  one  hair's  v.  King,  5  Ch.  Div.  660  ;  Horsey  v. 
breadth  beyond  the  decided  cases,  and  I  Graham,  L.  R.  5  C.  P.  9  ;  Kennedy  i>.  Lee, 
think  I  should  be  doing  so  if  1  were  to  3  Mer.  441 ;  Williams  v.  Lake,  3  E.  &  E. 
hold  that  in  this  contract  there  is  a  sufii-  349  ;  Blagden  v.  Bradbcar,  12  Ves.  466  ; 
cient  description  of  the  property.  I  hold  Coles  v.  Trecothick,  9  Ves.  234  ;  Potter  t'. 
that  the  only  documents  in  writing  to  DufReld,  L.  R.  18  Eq.  4  ;  Commins  v. 
which  I  can  refer,  are  the  receipt  and  the  Scott,  L.  K.  20  Eq.  11  ;  Morris  v.  Wilson, 
conditions  and  the  memorandum  signed  at  5  Jur.  N.  s.  168  ;  Wood  v.  Scjirth,  2  K.  & 
the  bottom  of  tlieni,  and  I  hold,  upon  the  J.  33  ;  Sale  v.  Lambert,  L.  R.  18  Eq.  1. 
authority  of  Long  «;.  Millar,  4  C.  P.  D.  450,  And  see  Boydell  v.  Drummond,  11  East, 
that  in  those  two  documents  taken  to-  142  ;  Ridgway  r.  Wharton,  6  H.  L.  Cas. 
gether,  there  is  not  a  sufficient  definite  238  ;  Smith  v.  Webster,  3  Ch.  Div.  49  ; 
description  of  the  property  sold  and  pur-  Rishton  v.  Whatmore,  8  Ch.  Div.  467  ; 
chased  to  enable  me  to  receive  parol  evi-  Williams  v.  Jordan,  6  Ch.  Div.  517  ; 
dence  of  what  the  subjects  of  that  sale  and  Caton  v.  Caton,  L.  R.  2  H.  L.  127  ;  Van- 
purchase  were.  Having  come  to  that  con-  denburgh  v.  Spooner,  L.  R.  1  Ex.  316; 
elusion,  I  am  bound  to  dismiss  this  action,  /Allen  v.  Bennet,  3  Taunt.  167;  Buxton 
which  I  do."  I'.   Rust,   L.    R.   7  Ex.    1,   279  ;    Sykes  v. 

The  following  cases,  in  addition  to  Long  Dixon,  9  X.  &  E.  693;  Dohell  v.  Hutch- 

V.  Millar,  4  C.  P.  Div.  450,  were  examined  inson,  3  A.  &  E.  355  ;  and  the  other  cases 

in    Shanllovv   v.    Cotterell,    18    Ch.    Div.  cited  in  this  Part. 
280  :    Western   v.  Russell,  3   Ves.  &   B. 


PART  IX.]      THE   ESSENTIAL  REQUISITES   OP  THE   MEMORANDUM.      667 

they  could  be  read  together,  and  together  they  constituted  a  good 
memorandum  within  the  statute.' 

A  number  of  propositions  relating  to  the  Statute  of  Frauds  were 
established  by  Kekewich,  J.,  in  the  late  case  of  Wylson  v.  Dunn.^ 
A  proposal  had  been  made  that  the  two  plaintiffs  should  buy  a 
triangular  field  of  about  three  acres,  and  that  the  defendant 
should  buy  half  an  acre  of  it  from  them.  One  of  the  plaintiffs 
and  the  defendant  met  on  the  field.  The  defendant  wished  to 
have  a  piece  in  one  of  the  angles,  and  the  plaintiff  stepped  so 
as  to  mark  out  where  a  base  line  would  cut  off  half  an  acre. 
Some  days  afterwards  the  same  plaintiff  wrote  to  the  defendant 
asking  her  to  let  them  have  a  letter  agreeing  to  purchase  the  half 
acre  she  had  selected,  for  X350.  She  wrote  back,  not  expressly 
referring  to  the  other  letter,  that  she  was  willing  to  take  half  an 
acre  as  agreed  upon  for  £350.  The  plaintiffs  did  not  obtain  a 
contract  with  the  owner  of  the  land  for  the  purchase  until  Novem- 
ber 4,  which  was  three  months  afterwards.  On  November  13,  the 
defendant  threatened  to  withdraw,  and  on  November  20,  her  soli- 
citors wrote  that  she  did  withdraw  from  the  contract.  Kekewich, 
J.,  held  as  follows :  1.  That  the  small  element  of  uncertainty  in 
the  measurement  of  the  land  might  be  disregarded,  and  that  the 
parties  must  be  considered  as  having  determined  the  exact  piece 
of  land  to  be  taken.  2.  That  the  second  letter  contained  a  suffi- 
cient reference  to  the  first;  and  that  the  two  letters  formed  a  valid 
contract  within  the  Statute  of  Frauds.  3.  That  though  the  two 
plaintiffs  were  the  purchasers  of  the  land,  and  the  letters  forming 
the  contract  passed  between  the  defendant  and  one  only  of  the 
plaintiffs,  he  must  under  the  circumstances  be  considered  as  agent 
for  the  other  as  well.  4.  That  the  doctrine  of  non-mutuality  be- 
ing a  bar  to  specific  performance,  does  not  apply  to  a  contract 
which  to  the  knowledge  of  both  parties  cannot  be  enforced  by 
either  until  the  occurrence  of  a  particular  event ;  and,  therefore, 
5.  That  though  the  defendant  might  have  withdrawn  at  any  time 
before  November  4,  when  the  plaintiffs  first  became  able  to  per- 
form their  part,  she  could  not  withdraw  afterwards. 

In  an  Irish  case  ^  the  defendant  purchased  at  an  auction  certain 
lots  of  maize,  the  property  of  the  plaintiff,  the  bulk  of  which  was 
in  store.  In  an  action  for  not  removing  the  maize  within  the 
time  mentioned  in  the  conditions  of  sale,  and  to  recover  the  loss 
upon  a  resale,  the  plaintiff  and  the  auctioneer  deposed  that  the 
sale  was  by  sample,  and  it  appeared  that  samples  had  been  exhib- 
ited at  the  auction,  but  the  entry  in  the  auctioneer's  book  of  the 

1  Studds  V.  Watson,  28  Ch.  Div.  305.  »  McMiillen  v.  Helberg,  4  L.  R.  Ir.  94. 

^  34  Ch,  Div.  569. 


668 


COMMENTARIES   ON   SALES. 


[book  IV. 


sales  to  the  defendant  omitted  to  state  that  the  sale  was  by  sam- 
ple. It  was  held  by  a  majority  of  the  court,  that  there  being  un- 
contradicted evidence  of  the  sale  having  been  a  sale  by  sample, 
importing  in  the  ordinary  signification  of  the  words  an  agreement 
that  if  the  bulk  did  not  correspond  with  the  sample,  the  purchaser 
should  not  be  bound,  the  entry  in  the  auctioneer's  book  omitted  a 
material  term  of  the  contract  in  not  stating  that  the  sale  was  by 
sample,  and,  therefore,  it  was  not  a  sufficient  memorandum  of  the 
contract  under  the  Statute  of  Frauds. 

The  plaintiffs  having  subsequently  to  the  auction  furnished  the 
defendant  with  an  invoice  of  the  lots  sold,  stating  the  quantities, 
prices,  and  places  where  stored,  accompanied  by  a  letter  referring 
to  such  invoice,  and  requesting  payment,  the  defendant  replied 
by  a  letter  signed  by  him,  in  which  he  acknowledged  the  receipt 
of  the  invoice,  and  offered  to  accept  the  plaintiffs'  draft  at  three 
months  for  the  amount,  and  to  give  them  a  lien  on  the  goods  in 
the  mean  time.  It  was  held,  by  a  majority  of  the  court,  that  the 
letters,  coupled  with  the  invoice  to  which  they  referred,  constitut- 
ed evidence  in  writing  of  a  contract  for  the  purchase  of  the  goods, 
which  satisfied  the  statute.  O'Brien,  J.,  dissented  from  the  hold- 
ing of  the  majority  on  this  latter  point,  on  the  ground  that  the 
majority  sustained  the  first  point,  viz.,  that,  as  the  invoice  and 
the  correspondence  did  not  show  that  the  sale  was  by  sample, 
the  writings  failed  to  supply  a  note  or  memorandum  of  the  whole 
contract.     We  think  his  view  on  this  point  was  entirely  sound.^ 


1  Where  the  party  whom  it  is  sought  to 
charge  has  signed  a  writing  containing  all 
the  essential  terms  of  a  contract  of  sale, 
even  though  it  be  the  intention  of  the  par- 
ties to  prepare  and  execute  a  more  formal 
contract,  which  is  not  done,  but  the  par- 
ties act  on  the  terms  of  the  informal  con- 
tract, this  sufficiently  shows  the  consensus 
of  the  parties  to  such  a  contract,  which  can 
be  enforced  against  the  party  wlio  has 
signed  the  writing  ;  the  mutuality  appear- 
ing by  the  }>arties  acting  under  the  terms 
of  the  writing.  Thus  in  Brogden  v.  Met- 
ropolitan Ry.  Co.,  2  App.  Cas.  666,  it  was 
held  that  circumstances  in  the  conduct  of 
two  ])arties  may  establish  a  binding  con- 
tract between  them,  although  the  agree- 
ment reduced  into  writing  as  a  draft  has 
not  been  formally  executed  by  either.  In 
such  a  case,  the  word  "approved,"  writ- 
ten by  one  of  the  parties  at  the  end  of  the 
draft  agreement,  and  signed  by  him,  must 
be  taken  as  an  approval  by  him  of  the 
substance  of  the  draft,  and  not,  as  in  the 
case  of  a  conveyancer's  or  solicitor's  draft, 
an  approval  of  the  mere  form. 

In  this  case,  the  appellants,  B.  &  Co., 


had  for  some  years  supplied  the  respond- 
ents, the  M.  Company,  with  coal.  At  last 
it  was  suggested  by  B.  that  a  contract 
should  be  entered  into  between  them.  Af- 
ter their  agents  had  met  together,  the 
terms  of  agreement  were  drawn  up  by  the 
agent  of  the  M.  Company,  and  sent  to  B. 
B.  filled  up  certain  parts  of  it  wiiich  had 
been  left  in  blank,  and  introduced  the  name 
of  the  gentleman  who  was  to  act  as  arbitrator 
in  case  of  difference  between  the  parties, 
wrote  "approved"  at  the  end  of  the  pa- 
per, and  signed  his  own  name.  B.'s  agent 
sent  back  the  paper  to  the  agent  of  the 
M.  Company,  who  put  it  in  his  desk,  and 
nothing  further  was  done  in  the  way  of  a 
formal  execution  of  it.  Both  parties  for 
some  time  acted  in  accordance  with  the 
arrangements  mentioned  in  the  paper : 
coals  were  supplied  and  payments  made  as 
therein  stated,  and  when  some  complaints 
of  inexactness  in  the  supply  of  coals,  ac- 
cording to  the  terms  stated  in  the  paper, 
were  made  by  the  M.  company,  there  were 
explanations  and  excuses  given  by  B.,  and 
the  "contract"  was  mentioned  in  the  cor- 
respondence, and  matters  went  on  as  be- 


PART  IX.]       THE   ESSENTIAL   REQUISITES   OP   THE   MEMORANDUM.      669 


fore.  Finally,  B.  &  Co.  declined  to  con- 
tinue the  supply  of  coals.  On  an  action 
for  damages  tor  breach  of  contract  having 
been  brought  by  the  respondents,  the  de- 
fendants (the  appellants)  denied  the  exis- 
tence of  any  contract  for  the  supply  of  the 
coal.  On  a  special  case  before  the  Common 
Pleas,  judgment  was  entered  for  the  plain- 
tiffs. The  case  was  carried  to  the  Court  of 
Appeal,  when  the  judgment  was  affirmed 
by  Bramwell  and  Amphlett,  BB.  ;  Cock- 
burn,  C.  J.,  dissenting.  The  case  was  then 
appealed  to  the  House  of  Lords,  where, 
circumstances  having  rendered  a  second 
argument  necessary,  the  case  was  consid- 
ered to  be  so  plainly  and  clearly  against  the 
appellants,  that  the  respondents'  counsel 
were  not  called  upon.  The  House  of 
Lords  held,  in  affirming  the  judgment  of 
the  courts  below,  that  the  facts  and  the 
actual  conduct  of  the  parties  established 
the  existence  of  such  a  contract,  and  there 
having  been  a  clear  breach  of  it,  B.  &  Co. 
must  be  held  liable  upon  it.  Among  the 
judges  so  deciding,  were  some  of  the  ablest 
lawyers  of  England,  Lord  Cairns,  Lord 
Selborne,  and  Lord  Blackburn. 

The  case  was  not  reported  except  on  the 
appeal  to  the  House  of  Lords,  but  in  the 
judgment  of  Lord  Blackburn,  a  reference 
was  made  to  an  incorrect  opinion  in  the  case 
of  Mr.  Justice  Brett,  who  in  the  Common 
Pleas,  said,  referring  to  the  case  oi  Ex  parte 
Harris,  In  re  Imperial  Land  Company  of 
Marseilles,  L.  E.  7  Ch.  587,  and  other 
cases,  that  he  had  come  "to  a  strong 
opinion  that  the  moment  one  party  has 
made  a  proposition  of  terms  to  another, 
and  it  can  be  shown  by  sufficient  evidence 
that  that  other  has  accepted  those  teiins 
in  his  oivn  mind,  then  the  contract  is  made 
before  that  acceptance  is  intimated  to  the 
proposer."  This  is  so  manifestly  opposed 
to  principle  and  authority  that  we  are  not 
surprised  to  find  Lord  Blackburn  emphati- 
c-ally expressing  his  disagrement  with  so 
radically  unsound  a  principle,  as  he  did, 
as  follows  :  "  I  must  say  that  that  is  con- 
trary to  what  my  impression  is,  and  that 
I  cannot  agree  in  it.  If  the  law  was  as 
intimated  by  Mr.  Justice  Brett,  there 
would  be  nothing  to  discuss  in  the  present 
case.  But  I  have  always  believed  the  law 
to  be  this,  that  when  an  offer  is  made  to 
another  party,  and  in  that  offer  there  is  a 
request,  express  or  implied,  that  he  must 
signify  his  acceptance  by  doing  some  par- 
ticular thing,  then  as  soon  as  he  does  that 
thing  he  is  bound.  If  a  man  sent  an  offer 
abroad,  saying  :  '  I  wish  to  know  whether 
you  will  supply  me  with  goods  at  such  and 
such  a  price,  and  if  you  agree  to  that,  you 
must  ship  the  first  cargo  as  soon  as  you 
get  this  letter,'  there  can  be  no  doubt  that, 
as  soon  as  the  cargo  was  shipped,  the  con- 
tract would  be  complete,  and  if  the  cargo 


went  to  the  bottom  of  the  sea  it  would  go 
to  the  bottom  of  the  sea  at  the  risk  of  the 
orderer.  So  again  where,  as  in  the  case  of 
Ex  parte  Harris,  a  person  writes  a  letter 
and  says,  '  I  offer  to  take  an  allotment  of 
shares,'  and  he  expressly  or  impliedly  says, 
'  If  you  agree  with  me,  send  an  answer  by 
the  post,'  there,  as  soon  as  he  has  .sent  that 
answer  by  post,  and  put  it  out  of  his  con- 
trol, and  done  an  extraneous  act  which 
clenches  the  matter  and  shows  beyond  all 
doubt  that  each  side  is  bound,  1  agi-ee  the 
contract  is  perfectly  plain  and  clear.  But 
when  you  come  to  the  general  proposition 
which  Mr.  Justice  Brett  seems  to  have 
laid  down,  that  a  simple  acceptance  in  your 
own  mind  without  any  intimation  to  the 
other  party,  and  ex])ressed  by  a  private 
act,  such  as  putting  a  letter  into  a  drawer, 
completes  a  contract,  I  must  say  I  differ 
from  that."  2  App.  Cas.  at  p.  691.  AVith 
which  view  we  fully  concur,  and  think 
the  matter  of  importance  sufficient  to  jus- 
tify the  additional  quotation  of  the  follow- 
ing from  the  same  learned  judge,  who 
continues  :  "  It  appears  from  the  year 
books  that  as  long  ago  as  the  time  of  Ed- 
ward IV.  (17  Edw.  IV.  T.  Pasch  case,  2), 
Chief-Justice  Brian  decided  this  very  point. 
The  plea  of  the  defendant  in  that  case  jus- 
tified the  .seizing  of  some  gi-owing  crops, 
because  he  said  the  plaintiff'  had  offered 
him  to  go  and  look  at  them,  and  if  he 
liked  them  and  would  give  2s.  Qd.  for 
them,  he  might  take  them  ;  that  was  the 
justification.  That  case  is  referred  to  in  a 
book  which  I  published  a  good  many  years 
ago,  Blackburn  on  Contracts  of  Sale  (p. 
190  et  seq.),  and  is  there  translated.  Brian 
gives  a  very  elaborate  judgment,  explain- 
ing the  law  of  the  unpaid  vendor's  lien,  as 
early  as  that  time,  exactly  as  the  law  now 
stands,  and  he  consequently  says  :  '  This 
plea  is  clearly  bad,  as  you  have  not  shown 
the  payment  or  the  tender  of  the  money  ; ' 
but  he  goes  further  and  saj-s  (I  am  quot- 
ing from  memory,  but  I  think  I  am  quot- 
ing correctly),  '  Moreover,  your  plea  is 
utterly  naught,  for  it  does  not  .show  that 
when  you  had  made  up  your  mind  to  take 
them,  you  signified  it  to  the  plaintiff,  and 
your  having  it  in  3'our  own  mind  is  noth- 
ing, for  it  is  trite  law  that  the  thought  of 
man  is  not  triable,  for  even  the  devil  does 
not  know  what  the  thought  of  man  is  ; 
but  I  grant  you  this,  that  if  in  his  offer  to 
you  he  had  said,  go  and  look  at  them,  and 
if  you  are  pleased  with  them,  signify  it  to 
such  and  such  a  man,  and  if  you  had  sig- 
nified it  to  such  and  such  a  nuin,  your  plea 
would  have  been  good,  because  that  was  a 
matter  of  fact.'  I  take  it,  my  lords,  that 
that  which  was  said  three  hundred  years 
ago  and  more,  is  the  law  to  this  day,  and 
it  is  quite  what  Lord  Justice  Mellish  in 
Ex  parte  Harris  (L.  R.  7  Ch.  593)  accu- 


670 


COMMENTARIES   ON   SALES. 


[book   IV. 


rately  says,  that  where  it  is  expressly  or 
impliedly  stated  in  the  offer  that  you  may 
accept  the  offer  by  posting  a  letter,  the 
moment  you  post  the  letter  the  offer  is 
accepted.  You  are  bound  from  the  mo- 
ment you  post  the  letter,  not,  as  it  is  put 
here,  from  the  moment  you  make  up  your 
mind  on  the  subject."  This  fully  accords 
with  our  own  view,  as  will  be  seen  in  a 
later  volume  of  this  work,  where  we  differ 
with  the  views  of  Bramwell,  L.  J.,  as  ex- 
pressed by  him  in  The  Household  Fire 
Insurance  Co.  v.  Grant,  4  Ex.  Div.  216, 
where  he  discusses  the  effect  of  posting 
letters  in  the  formation  of  contracts. 

A  letter  signed  by  the  party  to  be 
charged,  written  to  his  own  agent,  refer- 
ring to  letters  of  the  agent  stating  the 
terms  upon  which  the  latter  has  made  a 
contract  on  his  behalf  with  the  other 
party  for  the  purchase  of  goods,  is  a  suffi- 
cient note  or  memorandum  of  the  bargain 
to  satisfy  the  17  th  section  of  the  statute 
of  frauds.  Gibson  v.  Holland,  L.  R.  1 
C.  P.  1.  And  see  Smith  v.  Watson, 
Bunb.  55  ;  Clerk  v.  Wright,  1  Atk.  12. 
But  a  letter  written  by  the  defendant  in 
answer  to  letters  of  plaintiff  containing 
the  terms  of  a  bargain  for  the  .sale  of  cot- 
ton, was  held  not  sufficient  to  amount  to 
a  memorandum  within  the  17th  section  of 
the  statute,  because  it  did  not  amount  to 
an  absolute  admission  of  the  existence  of 
a  contract  in  the  terms  alleged  by  the 
plaintiff,  being  equally  consistent  with  the 
existence  of  a  different  contract.  Caregan 
V.  Richards,  15  L.  T.  n.  s.  252.  And  the 
note  or  niemorandum  must  exist  when  the 
actiou  is  commenced.  Lucas  v.  Dixon,  22 
Q.  B.  Div.  357  ;  and  where,  in  equity, 
the  contract  is  admitted,  the  statute  must 
be  pleaded.     lb.  358. 

The  plaintiff  sent  a  mare  to  be  sold  by 
auction  at  the  defendant's  repository.  The 
defendant  advertised  the  mare  for  sale  by 
auction  on  March  28,  1872,  and  circulated 
a  printed  catalogue  of  the  horses  to  be 
sold  at  his  sale,  with  conditions  of  sale 
annexed,  in  which  the  plaintiffs  mare  was 
described  as  lot  49.  The  defendant  had  a 
sales  ledger,  which  was  headed,  "  Sales  by 
auction,  28  March,  1872,"  in  which  the 
plaintiff's  mare  was  also  numbered  49  ; 
but  neither  the  catalogue  nor  the  con- 
ditions of  sale  were  annexed  to  the  sales 
ledger,  nor  were  they  referred  to  therein. 
On  March  28,  1872,  the  lots  described  in 
the  catalogue  were  put  up  by  the  defendant 
for  sale  under  the  conditions.  The  plain- 
tiff's mare  was  put  up  for  sale,  and  knocked 
down  to  M.  for  £33,  and  thereupon  the 
defendant's  clerk  wrote  in  the  columns  of 
the  sales  ledger,  left  blank  for  this  pur- 
pose, the  name  of  M.  as  purchaser,  and 
the  price.  M.  afterwards  refused  to  take 
the  mare.     In  an  action  brought  by  the 


plaintiff  for  damages  sustained  through 
the  negligence  of  the  defendant  as  an  auc- 
tioneer in  not  making  a  binding  contract 
with  M.,  it  was  held  that  the  catalogue 
and  the  conditions  of  sale  were  not  suffi- 
ciently connected  with  the  entries  in  the 
sales  ledger  to  make  a  note  or  memoran- 
dum in  writing  of  a  contract  by  M.  to 
satisfy  the  statute  of  frauds;  that  the 
entry  by  the  clerk  was  not  by  an  author- 
ized agent  so  as  to  bind  the  purchaser, 
and  that  the  plaintiff  was  entitled  to  re- 
cover his  damages  against  the  defendant. 
Peirce  v.  Corf,  L.  R.  9  Q.  B.  210. 

A  broker,  acting  for  the  plaintiff,  made 
a  contract  for  the  sale  of  goods  to  the  de- 
fendant, sending  a  note  to  each  party,  but 
signing  only  that  which  was  sent  to  the 
seller.  He,  however,  entered  the  contract 
in  his  book,  in  which  he  signed  both  the 
bought  and  the  sold  note.  The  defendant 
kept  the  note  which  was  sent  to  him 
without  objection  until  called  upon  to  ac- 
cept the  goods,  when  he  repudiated  the 
contract,  assigning  for  reason  that  the 
note  sent  to  him  was  not  signed.  The 
court  held  that  the  conduct  of  the  de- 
fendant amounted  to  an  admission  that 
the  broker  had  authority  to  make  the  con- 
tract for  him,  and,  consequently,  that  the 
broker's  signature  to  the  sold  note  bound 
the  defendant,  and,  also,  that  the  signed 
entry  in  the  broker's  book  was  a  sufficient 
memorandum  of  the  bargain  to  .satisfy  the 
statute  of  frauds.  Thompson  i;.  Gardiner, 
1  C.  P.  D.  777.  While  it  was  admitted 
that  the  authorities  are  conclusive  to 
show  that  the  broker,  acting  for  one  of 
the  contracting  parties,  making  a  contract 
for  the  other,  is  not  authorized  by  both  to 
bind  both,  yet,  in  effect,  it  was  held  that  the 
broker  who  makes  a  contract  for  one  may 
be  authorized  by  the  other  to  sign  a  memo- 
randum of  the  contract  for  him  ;  and  in 
Thompson  v.  Gardiner  the  court  held  that 
the  lacts  showed  sufficient  authority  to 
the  broker  to  sign  the  memorandum  for 
the  defendant  .so  as  to  bind  him. 

The  plaintiff,  on  January  11,  1871, 
bought  of  the  defendant  a  parcel  of  wool, 
worth  £150.  The  following  memorandum, 
containing  the  items  agreed  upon,  wa.s 
drawn  up  and  signed  by  the  plaintiff,  but 
not  by  the  defendant,  and  was  handed  to 
the  defendant:  "  Bought  Mr.  J.  G.  Ru.st's 
wool  as  examined  at,"  etc.,  "the  whole  to 
be  cleared  in  about  21  days."  None  of  the 
wool  was  delivered,  and  there  was  no  part 
payment  of  the  price.  On  February  8 
the  defendant  wrote  :  "  It  is  now  28  days 
since  you  and  I  had  a  deal  for  my  wool, 
which  was  for  you  to  have  taken  all  away 
in  21  days  from  the  time  you  bought  it. 
I  do  not  consider  it  business  to  put  it  off 
like  this  ;  therefore,  I  shall  consider  the 
deal  off,  as  you  have  not  completed  your 


PART    IX.]       THE    ESSENTIAL   REQUISITES   OF   THE   MEMORANDUM.      671 


part  of  the  contract."  The  plaintifT  had, 
in  fact,  completed  his  part  of  the  contract 
on  the  true  construction  of  the  contract. 
On  February  9,  in  answer  to  the  plaintiffs 
request  to  see  a  copy  of  the  contract  con- 
tained in  the  memorandum  of  January  11, 
the  defendant  wrote  (inclosing  a  copy)  : 
"  I  beg  to  inclose  copy  of  your  letter  of 
the  11th  of  Januaiy. "  In  an  action  for 
non-delivery  of  the  wool,  the  Court  of 
Exchequer  held  (Buxton  v.  Rust,  L.  R. 
7  Ex.  1  ;  affirmed  on  appeal  by  the  Ex- 
chequer Chamber,  lb.  279),  that  the  letter 
of  the  9th,  with  its  inclosure,  taken  in 
connection  with  that  of  the  8th,  consti- 
tuted an  unambiguous  recognition  of  the 
existence  of  the  contract  and  of  its  terms, 
and  that  there  was  therefore  a  sufficient 
memorandum  in  writing,  signed  by  the 
defendant,  to  satisfy  the  17th  section 
of  the  statute  of  frauds.  The  prin- 
ciple on  which  the  case  was  decided  is 
well  stated  by  Channel),  B.,  in  the  Court 
of  Exchequer,  L.  R.  7  Ex.  at  p.  5,  thus  : 
"  All  that  the  statute  requires  is  that  the 
terms  of  the  bargain  should  be  proved  by 
written  evidence.  Suppose,  for  instance, 
an  agreement  to  buy  goods  at  a  fixed 
price,  and  a  memorandum  drawn  up 
silent  as  to  price,  although  the  price  was 
actually  fixed,  there  would  be  no  good 
contract.  Again,  a  memorandum  not 
disclosing  the  names  of  both  parties  would 
not  be  a  good  contract.  But  here  all  the 
terms  were  reduced  to  writing,  and 
the  defendant  has,  in  fact,  admitted  that 
the  written  paper  contained  them  all.  If, 
when  he  inclosed  the  copy  memorandum, 
he  had  said,  '  I  send  you  a  copy  of  your 
letter,  but  it  does  not  constitute  evidence 
of  any  contract  between  us,  because  one 
term  agreed  on  between  us  is  entirely 
omitted,'  the  case  would  have  been  differ- 
ent. But  he  does  nothing  of  the  sort. 
He  had  put  a  construction  on  one  of  the 
terms  which  is  incorrect,  as  the  jury  have 
found,  and  made  that  an  excuse  for  with- 
drawal ;  but  his  admission  of  the  contract 
and  its  terms  was  unequivocal."  The 
courts  held,  in  accordance  with  Bailey  v. 
Sweeting,  9  C.  B.  x.  s.  843,  and  Wilkin- 
son V.  Evans,  L.  R.  1  C.  P.  407,  that  as 
long  as  there  was  a  sufficient  admission  of 
the  contract  by  the  party  to  be  charged, 
the  fact  that  it  was  accompanied  by  a  re- 
pudiation of  the  obligation  to  peifoi'm  the 
contract,  would  not  prevent  its  being  used 
as  an  admission. 

In  Buxton  v.  Rust,  L.  R.  7  Ex.  279, 
280,  Willes,  .1.,  was  inclined  to  carry  to 
that  case  the  doctrine  of  Shortrede  v. 
Cheek,  1  A.  &  E.  57,  and  MacDonald 
V.  Longbottom,  1  E.  &  E.  977,  987.  In 
Buxton  V.  Rust,  L.  R.  7  Ex.  1,  279,  a 
written  memorandum  of  a  contract  for 
the  purchase  by  the  plaintiff  of  the  de- 


fendant's wool,  was  signed  by  the  plaintiflF, 
but  not  by  the  defendant.  Subsequently, 
the  defendant  wrote  the  plaintiff :  "  I  shall 
consider  the  deal  off  as  you  have  not  com- 
pleted your  part  of  the  contract."  Willes, 
J.,  was  inclined  to  think  that  having  re- 
gard to  the  holding  in  Shortrede  v.  Cheek, 
1  A.  &  E.  57,  and  MacDonald  v.  Longbot- 
tom, 1  E.  &  E.  977,  987,  this  reference  to 
the  contract  was  sufficient  to  incorporate 
the  paper  signed  by  the  plaintiff  with  the 
letter  written  by  the  defendant.  Referring 
to  those  cases,  Willes,  J.,  said  :  "  In  the 
former  case  it  was  held  that  the  words 
'  the  promissory  note  '  used  in  a  memoran- 
dum of  a  guarantee  might  be  proved  to 
refer  to  a  certain  promissorj'  note  made  by 
the  defendant's  son  and  payable  to  the 
plaintiff.  In  the  latter,  evidence  was  ad- 
mitted to  show  that  the  words  'your  wool ' 
referred  to  certain  particular  wool  which 
the  plaintiff  had  under  his  control  at  the 
time  of  the  contract.  And  here  it  might, 
I  think,  well  be  contended  that  the  con- 
tract mentioned  in  the  letter  of  February  8, 
might  have  been  shown  to  be  the  contract 
of  January  11,  and  then  that  letter,  on  the 
principle  that  verba  relaia  inesse  videntur, 
would  itself  be  sufficient. "  However,  the 
case  was  not  decided  on  that  point ;  of  the 
correctness  of  which  the  other  judges  of 
the  Exchequer  Chamber  seemed  doubtful. 
It  is,  of  course,  quite  a  different  thing  to 
show  by  parol  what  is  the  subject-matter 
of  a  contract  referred  to  in  a  writing,  from 
showing  by  parol  what  the  whole  contract 
itself  is.  Applying  the  principle  of  Mac- 
Donald V.  Longbottom,  1  E.  &  E.  977,  987, 
to  the  latter  case,  and  a  contract  wholly 
oral  could  be  proved  by  such  a  reference. 

In  Nesham  v.  Selby,  L.  R.  13  Eq.  191, 
and  on  appeal  L.  R.  7  Ch.  406,  the  plain- 
tiff, in  a  bill  for  specific  performance  of  an 
agreement  to  take  a  lease  of  a  house, 
alleged  and  produced  evidence  of  a  verbal 
agreement,  which  was  denied  by  the  de- 
fendant. In  order  to  take  the  case  out  of 
the  statute  of  frauds,  the  ])laintiff  relied 
on  a  letter  written  by  the  defendant,  in 
which  the  defendant  agreed  to  take  the 
house  for  seven  years  on  certain  term.s,  but 
in  which  the  day  of  the  commencement  of 
the  lease  was  not  mentioned  ;  and  on 
another  letter  from  the  defendant  men- 
tioning the  day  of  commencement,  and 
adding  terms  to  which  the  plaintiff  did 
not  agree.  The  Court  of  Appeal,  affiiriiing 
the  judgment  of  Lord  Romilly,  M.  R., 
held  that  there  was  no  memorandum  of 
agreement  sufficient  to  satisfy  the  require- 
ments of  the  statute  ;  the  court  expressing 
their  ojnnion  that  they  had  gone  (juite  far 
enough  in  decreeing  specific  perf^ormance 
upon  letters  as  constituting  agreements, 
where  one  side  is  bound  and  the  other 
not. 


672 


COMMENTARIES   ON   SALES. 


[book  IV. 


In  Baumann  v.  James,  L.  R.  3  Ch.  508, 
parol  evidence  was  allowed  to  be  given 
to  connect  written  documents  to  satisfy 
the  4th  section  of  the  statute,  under  the 
following  circumstances  :  A  tenant  applied 
to  the  landlord's  solicitors  as  to  the  re- 
newal of  his  lease.  The  solicitors  sent  him 
a  report  by  a  surveyor,  who  recommended 
the  granting  of  a  lease  for  fourteen  years,  at 
a  given  rent,  if  certain  repairs  were  done 
by  the  tenant.  The  tenant  wrote  back  as- 
senting to  the  repairs  and  rent,  but  asked 
for  a  term  of  twenty-one  years.  No  final 
agreement  was  come  to  ;  but  some  mouths 
afterwards  a  negotiation  having  proceeded 
between  the  tenant  and  landlord  without 
the  intervention  of  the  solicitors,  the  land- 
lord wrote  a  letter  promising  the  tenant  a 
lease  for  fourteen  years  "  at  the  rent  and 
terms  agreed  upon,"  to  which  the  tenant 
wrote  back  an  unciualified  acceptance.  It 
was  held,  affirming  the  judgment  of  Vice- 
Chancellor  Stuart,  that  parol  evidence  was 
admissible  to  connect  the  report  and  the 
tenant's  previous  letter  with  the  subse- 
quent letters  ;  and,  it  being  conclusively 
established  that  there  had  never  been  any 
other  rent  or  terms  agreed  upon  than  those 
mentioned  in  the  report,  that  there  was  a 
sufficient  memorandum  in  writing  to  sat- 
isfy the  statute  of  frauds. 

One  of  the  parties  to  a  contract  cannot 
sign  the  name  of  the  other  as  his  agent,  so 
as  to  bind  him,  within  §  17  of  the  statute 
of  frauds.  The  signature  as  agent  must 
be  by  a  third  person.  The  question  came 
up  in  Sharman  v.  Brandt,  L.  II.  6  Q.  B. 
720.  There,  the  plaintiff,  a  broker,  carry- 
ing on  business  as  "  W.  S.  &  Co.,"  was 
authorized  by  the  defendants,  B.  «&  H.,  to 
buy  for  them  in  the  market  200  tons  of 
hemp.  He  drew  up  and  forwarded  to  the 
defendants  a  contract  note,  as  follows  : 
"Bought  for  Messrs.  B.  &  H.,  of  our  prin- 
cipals, 200  tons  of  hemp.  W.  S.  &  Co., 
brokers."  The  plaintiff  had  in  fact  no 
principals  as  sellers  in  the  transaction  ; 
but  the  defendants  had  no  notice  of  this. 
The  defenrlants  having  refused  to  accept 
liemp  under  this  contract,  the  plaintiff 
brought  an  action  to  recover  damages 
therefor.  On  the  trial  before  Blackburn, 
J.,  the  plaintiffs  were  nonsuited.  On  ap- 
plication to  tlxe  Court  of  Queen's  Bench, 
pursuant  to  leave  reserved,  a  rule  for  a 
new  trial  was  refused  ;  and,  on  appeal,  the 
Court  of  Exchequer  Chamber  dismissed 
the  appeal,  holding  that  the  plaintiff  could 
not  maintain  an  action  on  the  contract, 
on  the  grounds  that  the  contract  in  writ- 
ing was  with  an  undisclosed  principal  as 
seller,  and  that  the  plaintiff,  if  a  party  to 
the  contract,  could  not  sign  as  agent  for 
the  defendants  to  bind  them  within  §  17 
of  the  statute  of  frauds  ;  Kelly,  C.  B., 
saying  :   ' '  Without  any  authority,  on  first 


principles,  a  contract  between  a  broker, 
though  in  his  own  person,  but  expressed 
to  be  as  broker  for  an  unnamed  principal, 
and  a  purchaser,  is  not  a  contract  made 
between  the  broker  as  unnamed  principal, 
and  the  purchaser.  This  was  therefore 
not  a  note  of  any  contract  at  all  between 
the  plaintiff,  as  seller,  and  the  defendants, 
as  purchasers  ;  nor  was  the  memorandum 
signed  in  such  a  way  as  to  be  enforceable 
within  the  statute  of  frauds."  See  Wright 
V.  Dannah,  2  Camp.  313  ;  Farebrother  v. 
Simmons,  5  B.  &  Aid.  333  ;  Fairlie  v.  Fen- 
ton,  L.  R.  5  Ex.  169. 

It  is  impossible  to  use  an  entry  in  an 
auctioneer's  book  for  the  purpose  of  prov- 
ing a  contract  for  sale  within  the  statute 
of  frauds,  unless  the  entry  comprises  such 
a  reference  to  the  conditions  of  sale,  sub- 
ject to  which  the  pi'operty  was  sold,  as  to 
identify  them,  ujjou  production,  as  being 
the  conditions  mentioned  in  the  entry. 
Hence,  it  was  held  that  there  was  no  suf- 
ficient contract  in  writing  within  the  stat- 
ute of  frauds,  and  specific  performance  was 
refused  as  against  the  purchaser,  where,  at 
a  sale  by  auction,  subject  to  conditions, 
the  auctioneer  entered  in  his  sale-book  the 
names  of  the  vendor  and  purchaser,  the 
subject-matter  of  the  sale,  and  the  amount 
of  the  purchase-money,  but  omitted  in  the 
entry  to  embody  or  make  any  reference  to 
the  conditions  of  sale  ;  there  being  no 
other  memorandum  or  contract  in  writ- 
ing. Rishton  v.  Whatinore,  8  Ch.  D.  467. 
In  Beer  v.  London  &  Paris  Hotel  Com- 
pany, L.  R.  20  Eq.  412,  it  was  held  that 
a  contract  signed  by  an  auctioneer  on  be- 
half of  an  undisclosed  principal  is  a  valid 
contract  under  the  statute  of  frauds. 

In  Smith  v.  Webster,  3  Ch.  Div.  49,  it 
was  held  that  a  letter  written  by  a  solici- 
tor simply  in  tliat  capacity,  and  not  as  the 
authorized  agent  of  the  party  whom  it  was 
sought  to  bind,  was  not  such  a  note  or 
memorandum  of  an  agreement  as  is  re- 
quired by  the  statute  of  frauds.  There 
W.  entered  into  a  verba!  agreement  with 
A.  to  sell  him  an  inn  called  the  Lion  Inn 
for  £950.  On  the  following  day  W.'s  so- 
licitor wrote  to  A.'s  solicitor:  "  W.  has 
been  with  us  to-day,  and  stated  that  he 
had  arranged  with  your  client  A.  for  the 
sale  to  the  latter  of  the  Lion  Inn  for  £950. 
We  therefore  send  lierewith  draft  contract 
for  your  perusal  and  approval."  The  court 
held  W.  was  not  bound. 

Where  a  bill  for  specific  performance 
alleged  a  verbal  agreement  for  the  lease  of 
a  house  by  the  plaintiff  to  the  defendant 
for  seven  years  from  Michaelmas,  1870, 
followed,  ,firsf,  by  a  letter  from  the  de- 
fendant to  the  ]ilaintiff,  which  did  not 
state  when  the  term  was  to  commence, 
and,  secondhj,  by  another  letter  of  the  de- 
fendant to  the  plaintiff,  in  which,  after  re- 


PART   IX.]       THE   ESSENTIAL   REQUISITES   OF   THE   MEMORANDUM.      673 


fi-rring  to  the  previous  letter,  the  defend- 
ant stated  that  he  thought  it  was  best  to 
say  that  it  was  clearly  understood  on  his 
])art  that  the  plain titf  agreed  to  let  the 
iiouse  for  seven  years  from  Michaelmas, 
1870,  upon  certain  conditions  therein  men- 
tioned, some  of  which  the  plaintitf  did  not 
admit  to  form  part  of  tlie  alleged  verbal 
agreement  ;  it  was  held  that  neither  the 
first  letter  nor  the  two  together  constituted 
a  memorandum  in  writing  of  the  alleged 
agreenuuit  sufficient  to  satisfy  tlie  require- 
ments of  the  statute  of  frauds.  Nesham 
V.  Selby,  L.  R.  13  E(i.  191. 

Where  the  N.  conunissioners  agreed  to 
sell  a  propert}'  to  the  defendant  D.,  the 
contract  did  not  refer  to  any  plan,  but  the 
agents  who  signed  it  for  the  })arties  signed 
at  the  same  time  the  following  memoran- 
dum written  upon  a  plan  of  the  pioperty  : 
"  Plan  of  property  sold  to  and  jiurchased 
by  D.,  October  23,  1874.  N.  B.  -  -  The 
property  included  in  the  purchase  is  edged- 
with  red  color  ; "  it  was  held  that  the  plan 
was  sufficiently  incorporated,  and  that  the 
description  in  the  contract  was  controlled 
by  it.  Nene  Valley  Drainage  Commission- 
ers V.  Dunkley,  4  Ch.  D.  1. 

A  letter  of  guaranty  is  an  agreement 
to  pay  the  debt  of  another  on  his  making 
default,  which  by  the  statute  of  frauds 
must  be  in  writing,  and  signed  by  the 
party  to  be  charged.  It  cannot  be  added 
to  by  verbal  evidence,  nor  by  written  either, 
if  not  signed  by  the  guarantor,  unless  the 
written  evidence  is  by  a  reference  in  the 
letter  adopted  as  part  of  it.  Rut  as  the 
statute  does  not  prescribe  the  form  of  a 
binding  agreement,  it  is  sufficient  that  the 
material  parts  of  it  a])pear  either  expressed 
or  clearly  to  be  implied  ;  and  correspond- 
ence and  other  evidence  maj'  be  used  to 
ascertain  the  true  import  and  application 
of  the  agreement,  by  the  aid  of  which  ex- 
trinsic evidence  the  proper  construction 
maybe  made.  Bell  v.  Bruen,  1  How.  16!t; 
Drummond  v.  Prestman,  12  Wheat.  51-5; 
Douglass  V.  IJevnolds,  7  Peters,  113  ;  Lee 
V.  Dick,  10  Peters,  482. 

In  Davey  v.  Shannon,  4  Ex.  Div.  81, 
the  statement  of  claim  alleged  that  in 
1866,  the  defendant  entered  into  the 
plaintiffs  employment  as  a  foreman  tailor 
for  three  years,  on  the  terms  that  if  he 
should  leave  the  ]ilaintiff,  he  should  not 
engage  in  the  service  of  any  one  carrying 
on,  or  himself  caiTV  on,  the  business  of 
a  tailor  within  five  miles  of  D.  ;  and  that, 
after  the  expiration  of  the  three  years,  he 
continued  in  the  plaintiffs  employment 
on  the  like  terms,  except  as  to  the  period 
of  employment,  till  1877.  The  breach  was 
that  in  1877,  the  defendant  left  the  plain- 
tiff, and  carried  on  business  as  a  tailor  in 
D.  The  defence  relied  on  was  that  the 
contract  was  not  in  writing,  and  as  it  was 


not  to  be  performed  within  the  year,  it  was 
void  within  the  statute  of  frauds.  On  de- 
murrer it  was  held  by  Hawkins,  J.,  that 
the  contract  amounted  to  an  agi'eement 
not  to  set  up  the  trade  during  the  joint 
lives  of  the  defendant  and  the  plaintiff; 
and  was,  therefore,  prima  acie  not  to  be 
performed  within  a  j'ear,  and  therefore  fell 
within  the  statute. 

The  appellant  was  mortgagee  of  a  farm 
in  Mississippi,  and  it  was  verbally  agreed 
between  her  and  the  administratrix  of  the 
mortgagor,  that  certain  cotton  was  to  be 
taken  as  a  payment  on  the  mortgage.  The 
\n'u'x-,  was  fixed  at  twenty  cents  a  pound, 
but  the  number  of  pounds  was  not  defin- 
itely ascertained  ;  neither  was  any  paj'- 
ment  indorsed  upon  the  mortgage,  nor 
any  receipt  given,  nor  any  memorandum 
in  writing  made,  nor  any  present  consid- 
eration paid.  Neither  did  any  change  of 
]iossession  take  place,  nor  was  there  any 
delivery,  actual  or  symbolic.  The  Court 
of  Claims  held,  affirmed  by  the  Supreme 
Court  of  the  United  States  (Mahan  v. 
United  States,  16  AVall.  143),  that  under 
the  Mississi[i])i  Statute  of  Fiauds  (Revised 
Code  of  1857,  p.  359,  art.  4  of  chap.  44) 
the  agreement  passed  no  title  to  the 
cotton. 

In  Huntley  v.  Huntley,  114  U.  S.  394, 
it  was  claimed  that  an  interest  in  a  stage- 
coach company  was  transferable  as  stock 
in  corporations,  and  therefore  that  an 
agreement  for  the  transfer  of  such  interest 
as  transferable  shares,  must  be  in  writing, 
under  the  statute  of  frauds  in  force  in  the 
District  (Distiict  of  Columbia),  with  ref- 
erence to  a  contract  for  the  sale  of  goods,' 
wares,  and  merchandise.  The  court,  with- 
out deciding  whether  a  contract  for  the 
transfer  of  such  an  interest  comes  within 
the  statute  or  not,  held  that  both  the 
written  and  verbal  evidence  in  the  case 
showed  that  the  contract  had  been  so  far 
executed  between  the  parties  that  their 
rights  and  obligations  could  not  be  af- 
fected by  the  statute. 

An  agreement  required  to  be  in  writing 
and  to  be  signed  by  the  party  sought  to 
be  charged,  which  was  not  signed  by  him, 
but  was  b}'  the  other  parties  to  the  agree- 
ment, was  held  to  b;i  proved  by  a  reference 
to  it  in  letters  written  by  him,  in  which 
he  referred  to  it  as  "the  agreement,"  and 
making  reference  to  its  contents  ;  parol 
evidence  being  held  to  be  admissible  to 
show  that  the  agreement  produced  was 
"  tlie  agreement  "  which  was  referred  to 
in  the  letters.  Beckwith  v.  Talbot,  95 
U.  S.  289.  And  see  Johnson  v.  Dodgson, 
2  M.  &  W.  653  ;  Salmon  Falls  Co.  v. 
Goddard,  14  How.  446. 

A  proposal  in  writing,  signed  by  the 
party  to  be  charged  and  accepted  by  parol 
by  the  party  to  whom  it  is  made,  is  9,  suf- 


43 


674 


COMMENTARIES    ON   SALES, 


[book  IV. 


ficieut  memorandum  or  note  of  an  agree- 
ment to  satisfy  the  4tli  section  of  the 
statute  of  frauds,  and,  semble,  it  is  also 
sufficient  to  satisfy  the  17th  section. 
Reuss  V.  Picksley,  in  the  Exchequer 
Chamber,  affirming  the  judgment  of  the 
Court  of  Exchequer,  L.  K.  1  Ex.  342. 

Although  the  commercial  law  of  all 
countries  treats  insurance  as  made  in  writ- 
ing by  an  instrument  denominated  by  us 
a  policy  ;  yet  such  a  contract  is  not  within 
the  statute  of  frauds,  and,  under  the  com- 
mon law,  a  promise  for  a  valuable  consid- 
eration to  make  a  policy  of  insurance  is  no 
more  required  to  be  in  writing  than  is  a 
promise  to  execute  and  deliver  a  bond,  or 
a  bill  of  exchange,  or  a  negotiable  note. 
Commercial  Mutual  Marine  Insurance  Co. 
V.  Union  Mutual  Insurance  Co.,  19  How. 
318  ;  First  Baptist  Cliurch  v.  Brooklyn 
Fire  Ins.  Co.,  18  Barb.  69  ;  Hamilton  v. 
The  Lycoming  Co.,  5  Barr,  339  ;  Sanford 
V.  The  Trust  Fire  Ins.  Co.,  11  Paige,  547. 

By  amendment  of  April  1,  1872,  to  the 
General  Statutes  of  Missouri  of  I860,  ch. 
99,  sec.  2,  it  was  enacted  that  innkeepers 
there  sliall  not  "  be  liable  for  tlie  loss  of  any 
merchandise  for  sale  or  sample  belonging  to 
a  guest,  unless  the  guest  shall  have  given 
written  notice  of  having  such  merchandise 
for  sale  or  sample  in  liis  possession  after 
entering  the  inn,  nor  shall  the  innkeeper  be 
compelled  to  receive  such  guest  with  mer- 
chandise for  sale  or  sample."  Under  this 
statute  the  court  held  that  if,  as  to  such 
merchandise,  it  is  intended  to  hold  the 
innkeeper  to  the  strict  liability  imposed, 
at  the  common  law,  in  respect  to  the  bag- 
gage or  other  personal  property  of  a  gue.st, 
the  statute  indicates  the  mode  in  which 
that  intention  must  be  manifested.  The 
guest  must  give  notice  of  such  intention. 
And  as  the  notice  is  expressly  required  to 
be  in  writing,  no  other  form  of  notice  can 
be  deemed  a  compliance  with  the  statute. 
Fisher  v.  Kelsey,  121  U.  S.  383  ;  Porter 
V.  Gilkey,  57  Mo.  235,  237.  See  also 
Myers  v.  Cottrill,  5  Biss.  465,  470  ;  Bur- 
gess V.  Clements,  1  M.  &  S.  306. 

In  Clark  v.  United  States,  95  U.  S.  539, 
the  majority  of  the  court  held  that  sec.  1, 
of  the  "  act  to  prcvp.nl  frand  on  tlic  part  of 
officers  intrusted  with  the  making  of  con- 
tracts for  the  government,"  12  Stat,  at 
Large,  411,  and  which  required  the  officers 
in  three  of  the  departments,  "  immediately 
after  the  passage  of  this  act,  to  cause  and 
require  every  contract  made  b}'  them  sev- 
erally on  behalf  of  the  government,  or  by 
their  officers  under  them  appointed  to 
make  such  contracts,  to  be  reduced  to 
writing  and  signed  by  the  contracting  par- 
ties with  their  names  at  the  end  thereof,  a 


copy  of  which  shall  be  filed  by  the  officer 
making  and  signing  tlie  said  contract  in 
the  returns  office,"  &c.,  rendered  illegal  all 
contracts  made  by  those  departments 
which  were  not  reduced  to  writing.  The 
minority  of  the  court  (Miller,  Field  and 
Hunt,  JJ.)  dissented  from  this  holding, 
and  were  of  the  opinion  that  Congress  in- 
tended nothing  more  than  to  regulate  the 
conduct  of  its  own  officers,  in  conq)elling 
them  to  furnish  all  the  evidence  in  their 
power  of  the  contract  and  the  circum- 
stances attending  its  negotiation,  and  that 
it  was  going  a  long  way  to  hold,  that  by 
an  act  which  contained  no  declaration 
that  a  parol  contract  should  be  void,  or 
that  it  should  not  be  enforced,  or  that  no 
suit  could  be  sustained  on  it,  was  passed 
for  the  jiurpose  of  establishing  an  entirely 
new  rule  as  to  the  validity  of  contracts,  at 
variance  with  any  law  heretofore  known  in 
this  country,  or  peihaps,  in  any  other. 
We  think  the  decision  of  the  majority  ex- 
tremely doubtful,  and  that  the  holding  of 
the  minority,  that  the  act,  imposing  cer- 
tain duties  on  the  officers  of  the  govein- 
ment  and  inflicting  certain  punishments 
on  them  for  the  non -performance  of  such 
duties,  was  simply  directory,  and  did  not 
render  invalid  contracts  which,  otherwise, 
could  be  legally  made  by  those  officers. 
Not  only  the  title  of  the  act,  but  the  en- 
tire language  of  the  .section,  shows  that  the 
design  of  the  act  was  not  to  create  a  new 
Statute  of  Frauds,  but  was  to  ])rescribe  the 
duty  of  officers  relative  to  contracts  "made 
bi/  t/icm  severallj-  on  behalf  of  the  govern- 
ment," and  all  the  other  items  of  the  pre- 
scribed duties  of  the  officers,  outside  of  the 
single  act  of  signing  the  contract,  were  of 
such  a  nature  as  to  be  out  of  the  power  of 
the  other  contracting  party  to  have  them 
enforced.  Why,  under  the  act,  the  con- 
tract was  to  be  treated  as  invalid  because 
"  the  duty  "  (for  that  is  all  that  it  was  as 
affecting  the  contract)  of  the  officer  in  one 
resjiect  was  not  performed,  and  was  to  be 
perfectly  valid  if  such  rii(t!/  were  done  in 
the  one  respect,  though  left  undone  in  all 
the  other  particulars,  certainly  does  not 
seem,  as  a  vicre  matter  of  the  construction 
of  a  statute,  clear.  And  yet  as  to  all  the 
other  duties,  the  court,  in  its  construction 
of  the  act,  held  that  with  reference  to 
them  the  act  is  only  directory,  and  though 
none  of  them  had  been  performed  the  con- 
tract remained  valid,  although,  as  far  as 
the  officer  was  concerned,  tlie  non-doing 
of  any  one  of  those  acts  by  him  was  as 
"unlawful  "  as  that  of  his  not  having  had 
the  contract  "  made"  by  him,  signed.  See 
95  U.  S.  at  p.  542. 


ANALYTICAL     INDEX. 


References  are  to  both  text  and  notes. 


ABANDONMENT.     (See  Married  Women.) 

in  many  cases  in  this  country,  held  wife  can  sue  and  be  sued  when 

abandoned  by  husband i.  193 

this  contra  to  general  principles  of  common  law i.  194 

ABJURATION  OF  THE  REALM.     (See  Married  AVomex.) 

where  husband  has  abjured  the  realm,  and  wife  trades  as,  feme 

sole,  she  can  sue  and  be  sued  on  her  contracts i.  206 

ACCEPTANCE.     (See  Actual  Receipt;  Frauds,  Statute  of.) 

of  gift  delivered  to  third  party  for  donee  will  be  presumed  where 

not  repudiated 1.  87 

as  to  acceptance  under  the  Statute  of  Frauds ii.  217-220 

though  earnest  and  part  payment  are  essentially  the  same,  the 
acceptance  and  actual  receipt  of  the  statute,  though  often 
treated  as  the  same,  are  very  far  from  being  so ii.  317 

both  acceptance  and  actual  receipt  required ii.  317 

actual  receipt  does  not  mean  manual  receipt;  receipts  usually 
good  at  common  law,  as  constructive  or  symbolical,  good  under 
the  statute ii.  317 

"and  actually  receive  "  is  used  in  contradistinction  to  the  accept- 
ance rather  than  with  reference  to  the  mode  of  receiving    .     .      ii.  317 

accepting  is  the  assenting  to  the  subject  as  that  of  the  contract, 

and  may  be  express  or  implied ii.  317,  318 

but  there  must  be  also  the  actual  receipt,  whether  such  be  manual, 

constructive,  or  symbolical ii.  318 

acceptance  is  an  act  of  the  mind,  and  is  an  entity  independent 

of  the  actual  receipt ii.  318 

but  may  be  sometimes  implied  from  laches,  or  from  dealing  with 

the  goods  after  their  receipt ii.  318 

may  sometimes  be  implied  from  the  receipt ii.  318 

this  has  led  to  their  being  confounded,  as  though  "  accept  «nc? 

actually  receive  "  meant  merely  receive ii.  318 

as  both  are  required,  where  acceptance  without  receipt,  or  re- 
ceipt without  acceptance,  neither  party  is  bound  .     .     .     .    ii.  318,  319 

a  purchaser  may  receive  goods,  and  may  reject  them,  i.  e.,  not 

accept  them ii.  319 

or  he  may  accept  them  and  refuse  to  receive  them ii.  319 

Blackburn  quoted  to  the  same  effect ii.  319 

in  either  case  the  statute  is  not  satisfied ii.  320 


676  ANALYTICAL    INDEX. 

[References  are  to  both  text  and  notes.) 

ACCEPTAXCE  —  {Continued). 

where  no  actual  receipt,  though  earnest  be  paid,  action  for  goods 

sold  and  delivered  will  not  lie ii.  320 

but  on  payment  or  tender  of  price  an  action  for  goods  bargained 

and  sold  will  be  sustained ii.  311,  312,  320 

where  acceptance,  symbolical  or  constructive  receipt  is  sufficient  ii.  320,  321 

old  case  showing  that  the  vendee  must  both  receive  and  accept, 

and  that  he  could  receive  and  reject ii.  321 

auction  sales,  notwithstanding  their  publicity,  are  within  the 

statute ii.  321 

sample  accepted  and  received  as  part  of  goods  bought  satisfies 

the  statute - ii.  322 

but  where  the  bulk  does  not  correspond  with  the  sample  accepted 
and  received,  there  is  no  acceptance  and  receipt  as  to  such 
bulk ii.  322 

sale  by  sample  at  one  place,  the  goods  to  be  delivered  at  an- 
other, is  within  the  statute ii.  322 

writing  one's  name  on  a  parcel  as  denoting  a  purchase  and  appro- 
priation of  it  by  the  purchaser,  has  been  held  to  be  an  accept- 
ance and  receipt,  but  not  as  to  other  goods  not  so  treated  nor 
produced  at  the  time ii.  322,  323 

cutting  off  spills  or  pegs  of  wine  casks  and  marking  vendee's 

name  thereon  held  acceptance  and  receipt ii.  323 

in  such  case  the  action  should  have  been  in  trover,  not  foi-  non- 
delivery      ii.  323,  324 

Lord  Eilenborough's  error  that  there  could  be  an  -actual  receipt 

under  the  statute  which  was  not  a  receipt ii.  323 

distinction  usually  unnoticed  between  the  acceptance  and  actual 

receipt  of  the  whole  and  of  only  a  part ii.  324 

in  the  latter  case  an  action  may  lie  for  the  non-delivery,  but  not 

in  the  former  case ii.  324 

carrier  may  be  constituted  agent  to  receive  the  goods,  but  usually 
he  is  neither  the  agent  to  accept,  noj-  to  actually  receive  them, 
to  satisfy  the  statute ii.  324 

the  purchase  itself  of  a  specific  article  is  an  acceptance,  though 

not  a  receipt  of  it ii.  324 

where  specific  goods  are  purchased,  which  is  an  acceptance  of 
them,  and  they  are  left  in  the  custody  of  the  vendor  as  bailee, 
with  his  vendor's  lien  gone,  such  possession  may  be  a  construc- 
tive receipt  by  the  vendee ii.  324,  325 

"  acceptance  "  often  improperly  used  as  though  synonymous  with 

"  actual  receipt  " ii.  32.'3 

where  acceptance  seems  to  be  shown,  but  no  actual  receipt  by 
vendee,  the  receipt  of  the  carrier  is  not  the  actual  receipt  of 
the  vendee ii.  325,  326 

Benjamin's   mistake  that  the  carrier,  though  not  the  vendee's 

agent  to  accept,  is  his  agent  to  receive '  ii.  326 

a  verbal  order  given  for  goods  to  be  left  at  a  named  place  does 
not  bind  the  vendee  by  their  deUvery  there,  without  accept- 
ance and  actual  receipt ii.  326 

where  by  the  purchase  of  a  specific  article  there  is  an  assent  to 
an  acceptance  of  it,  the  offering  to  sell  it  may  not  amount  to  a 
constructive  receipt ii.  326 


ANALYTICAL   INDEX.  677 

[References  are  to  both  text  and  notes.] 

ACCEPTANCE  —  (Continued). 

where  a  sample  is  accepted  aud  received  as  part  of  the  thing  sold, 

the  statute  is  satisfied ii.  326,  327,  394 

but  tliis  only  applies  to  the  thing  sold:  so  if  the  bulk  does -not 
correspond  with  the  sample,  there  is  no  acceptance  and  actual 
receipt  of  a  part  of  the  bulk ii.  327,  328,  395 

though  specific  goods  are  purchased  by  sample,  the  setting  aside 
of  them  by  tiie  vendor  does  not  constitute  a  delivery  by  the 
vendor  and  an  actual  receipt  by  the  vendee ii.  328 

the  confusion  in  the  cases  between  the  essentially  different  terms 

"  accept  "  and  "  actually  receive  " ii.  328-331 

hence,  where  the  facts  show  a  clear  acceptance,  it  is  stated  that 
there  has  been  no  acceptance,  instead  of  that  there  has  been  no 
actual  receipt ii.  330,  331 

■where  goods  are  sold  by  sample,  and,  though  not  according  to 
sample,  the  vendee  acts  on  the  contract,  his  acts  may  be  equiv- 
alent to  an  acceptance  and  actual  receipt ii.  331 

v?here  the  term  "no  acceptance  "  is  used  in  the  cases,  often  no 
more  is  meant  than  that  there  has  been  no  acceptance  and 
actual  receipt,  the  words  being  confounded  as  though  meaning 
the  same  thing ii.  331,  332 

acceptance  improperly  treated  as  a  change  of  possession;  con- 
founding it  with  receipt ii.  332 

there  was  here  a  clear  acceptance,  but  no  actual  receipt,  as  the 
subject  of  the  sale  remained  in  the  vendor's  possession  with  his 
lien  as  unpaid  vendor  attached ii.  332,  333 

there  may  be  an  acceptance  without  an  actual  receipt,  but  there 
cannot  be  an  actual  receipt  without  a  change,  manual,  symbol- 
ical, or  constructive,  in  the  possession ii.  333,  334 

where  articles  are  sold  under  different  contracts,  the  acceptance 
and  receipt  under  one  of  the  contracts  will  not  take  those  under 
the  other  out  of  the  statute ii.  334 

where  there  was  a  clear  case  of  acceptance,  but  not  of  an  actual 
receipt,  improperly  stated,  there  was  no  acceptance,  though,  in 
the  case,  there  is  a  slight  appreciation  of  the  distinction  be- 
tween the  acceptance  and  the  actual  receipt      .     .     .     .     .  ii.  334,  335 

"actual  acceptance,"    "unequivocal  acceptance,'^  "constructive 

acceptance,'"  used  improperly  where  receipt  is  meant  ....      ii.  335 

but  even  independent  of  the  actual  receipt,  there  may  be  inchoate 

acceptance ii.  036 

where  there  is  a  purchase  in  bulk,  and  an  acceptance  and  actual 
receipt  of  a  part,  and  an  appropriation  of  the  balance  and  assent 
by  the  purchaser,  the  case  is  out  of  the  statute  as  to  the  whole      ii.  336 

"  accept  and  actually  receive  "  is  treated  as  though  the  language 
was  "  receive  and  actually  receive  " ii.  336 

and  has  led  to  the  question  of  the  acceptance  being  improperly 

ignored  in  large  numbers  of  cases ii.  336,  337 

an  old  case  properly  holding  that  there  must  be  both  a  receipt 

and  an  acceptance ii.  337 

and  although  an  actual  receipt,  there  may  be  a  rejection  of  the 

goods,  t.  e.,  a  refusal  to  accept  them ii.  3'37 

thus  where  there  is  an  acceptance  and  no  receipt,  or  a  receipt  and 

rejection,  the  statute  is  not  satisfied • .     .      ii.  338 


678  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

ACCEPTANCE  —  (Continued). 

where  there  was  a  clear  case  of  acceptance  of  specific,  ascer- 
tained goods,  and  there  was  no  actual  receipt  of  them,  said,  from 
the  cflnfusion  in  using  these  terms,  that  there  was  no  accept- 
ance or  receipt  to  satisfy  the  statute ii.  339 

this  confusion  again  exposed,  and  the  meaning  of  "  acceptance  " 

again  explained ii.  339,  340 

Tindal,  C.  J.,  uses  "  accept,"  where  he  only  meant  "  receipt,"  as 

the  correlative  of  "  deliver  " ii.  340,341 

where  delivery  to  one's  own  ship,  the  statute  is  not  satisfied 

without  an  acceptance ii.  341 

payment  on  account  may  show  an  acceptance  of  the  subject  of  a 

specific  chattel  ordered  to  be  made ii.  341 

cases  improperly  treated  by  Benjamin  as  of  "  constructive  ac-  * 

ceptance,"  where  the  acceptance  is  clear,  but  the  question  is 
as  to  the  constructive  receipt ii.  312 

amid  much  error  a  slight  approach  made  in  Johnson  v.  Dodgson 

at  distinguishing  acceptance  from  receipt ii.  043 

being  a  purchase  by  sample,  the  bulk  corresponding  with  the 
sample,  the  goods  were  assented  to,  —  accepted ;  and  if  deliv- 
ered to  the  defendant's  agent  were  also  actually  received     .     .      ii.  344 

distinction  taken  in  Elliott  v.  Thomas  (all  the  goods  being  actu- 
ally received)  between  acceptance  and  receipt ii.  344,  345 

where  the  goods  have  been  actually  received,  and  are  all  bought 
in  one  entire  contract,  an  acceptance  of  part  satisfies  the 
statute ii.  34.5 

where  a  receipt,  and  the  parties  have  not  agreed  on  the  terms, 

there  is  no  acceptance ii.  345 

different  senses  in  which  the  term  "accept"  is  used     ....      ii.  345 

meaning  of  the  term  "  accept"  in  the  statute  made  clear  .     .  ii.  345,  346 

action  fo^r  not  accepting  will  not  lie  where  there  have  been  an 
acceptance  and  actual  receipt  of  the  whole  of  the  goods  to  sat- 
isfy the  statute ii.  345-347 

error  in  Wright  v.  Percival  that  there  could  be  an  acceptance  and 
actual  receipt  of  the  whole  of  the  goods,  and  yet  the  goods  re- 
main in  the  possession  of  the  vendor  with  his  lien  attached    ii.  347,  348 

Elmore  v.  Stone  correctly  holds  the  reverse ii.  348,  349 

absurdity  of  many  of  the  cases,  from  their  confusion  between 

the  acceptance  and  the  actual  receipt ii.  349,  350 

the  acceptance  and  actual  receipt  which  satisfies  the  statute  does 

so  as  to  all  the  ingredients  of  the  contract ii.  350 

where  there  was  a  clear  acceptance,  and  the  question  was  as  to 
the  actual  receipt,  it  was  improperly  put  as  to  whether  there 
was  an  acceptance ii.  350,  351 

improperly,  in  confusion,  said  by  Lord  Abinger,  that,  "  for  want 

of  a  delivery  "  no  acceptance,  meaning  "  no  receipt"     ...      ii.  351 

an  acceptance  must  be  pursuant  to  the  agreement  of  sale,  and 

the  acceptance  and  receipt  not  good  after  action  brought     .     .      ii.  351 

Edan  v.  Dudfield  really  holds  that  there  may  be  a  constructive 

receipt  which  satisfies  the  actual  receipt  of  the  statute     .     .     .     ii.  352 

from  the  confusion  in  it,  miscited  by  Wood  as  holding  that  there 
may  be  a  constructive  acceptance,  but  properly  by  Browne  that 
there  was  an  actual  receipt ii.  352 


ANALYTICAL   INDEX.  679 

[References  are  to  both  text  aud  notes.] 
ACCEPTANCE  —  {Continued). 

"  delivery  "  like  "  accept,"  has  different  meanings ii.  352 

Bushel  V.  Wheeler  discussed,  aud  the  confusion  in  the  English 
courts  between  the  "  acceptance  "  and  the  "actual  receipt" 

shown ii.  353-356 

clearly  in  Bushel  v.  Wheeler,  independent  of  the  question  of  ac- 
ceptance, there  was  no  actual  receipt,  as  the  goods  were  in  the 
possession  of  the  carrier  with  the  right  of  stoppage  in  transitu 

remaining ii.  356 

incorrect  tests  as  to  stoppage  in  transitu  by  Coleridge,  J.,  Lord 

Denman,  and  Benjamin ii.  356-358 

the  correct  tests  as  to  the  application  of  lien  and  stoppage  in  tran- 
situ on  the  actual  receipt ii.  358,  359 

Norman  v.  Phillips  discussed  and  explained ii.  359-363 

incorrect  statement  by  Benjamin,  Blackburn,  and  other  writers, 
that  the  carrier  is  the  vendee's  agent,  not  to  accept,  but  to 

receive  the  goods ii.  363 

qua.  carrier,  he  is  not  the  vendee's  agent  either  to  accept  or  receive 

the  goods  to  satisfy  the  statute ii.  363-365 

where  goods  are  sold  by  sample,  and,  after  actual  receipt,  though 
giving  notice  of  rejection  of  the  goods,  the  vendee  treats  them 

as  his  own,  this  is  an  acceptance  of  them ii.  365 

dealing  with  goods  after  their  actual  receipt  held  an  acceptance 

of  them ii.  365 

as  to  the  right  of  the  vendor  to  re-sell  the  goods  on  their  wrong- 
ful repudiation  by  the  vendee ii.  365 

where,  after  actual  receipt,  vendee  deals  with  goods  as  owner, 

acceptance  is  implied ii.  365 

in  Farina  v.  Howe,  distinction  between  acceptance  and  receipt  is 
sustained,  and  receipt  of  carrier  and  wharfinger  shown  not  to 
be  the  actual  receipt  of  the  vendee       .>......  ii.  366,  368 

goods  actually  received,  and  returned  as  not  equal  to  sample,  are 

rejected,  —  not  accepted ii.  368 

where  vendor  ceases  to  be  owner,  and  holds  as  vendee's  agent, 

vendor's  lien  is  gone ii.  368 

Curtis  V.  Pugh  examined,  and  the  difference  pointed  out  as  be- 
tween the  acceptance  and  actual  receipt  of  the  whole,  and  of 
only  a  part  of  the  goods,  as  to  sustaining  an  action  for  goods 

sold  and  delivered ii.  368-371,  374 

Curtis  V.  Pugh  considered  as  showing  both  acceptance  and  actual 
receipt  to  satisfy  the  statute,  but  the  actual  decision  in  the 
case  of  little  value  from  the  failure  of  the  court  to  understand 

the  meaning  of  the  statutory  acceptance ii.  368-372 

Saunders  v.  Topp,  case  of  clear  acceptance,  but  usual  failure  of 
the  English  judges  to  appreciate  the  meaning  of  "  accept ''  as 

used  in  the  statute ii.  373 

their  questioning  the  possibility  of  an  acceptance  without  deliv- 
ery and  receipt  leading  to  unsound  reasoning ii.  373 

Browne's  correct  statement  as  to  the  acceptance ii.  373 

Morton  v.   Tibbett  fully  discussed,  and  the  greatly  misleading 

mistakes  of  Lord  Campbell  and  the  rest  of  the  court  shown    ii.  374-381 
propositions  deduced  from  the  examination  of  the  cases  to  this 

point ii.  381-384 


680  ANALYTICAL   INDEX. 

[References  aie  to  both  text  and  notes.] 

ACCEPTANCE  —  (Continued). 

rule  deduced  from  Meredith  v.  Meigh,  coupled  with  Morton  v. 
Tibbett,  as  to  vendee  accepting  and  actually  receiving  the  goods 
by  dealing  with  the  bill  of  lading  so  as  to  end  the  stoppage  in 
transitu  .     .  ii.  381,  385 

in  Hunt  v.  Hecht,  dictum  in  Morton  v.  Tibbett  is  dissented  from, 

and  a  receipt  was  admitted  followed  by  a  rejection    .     .        ii.  385,  3S6 

inaccurate  dicta  in  Hunt  v.  Hecht  pointed  out      ....        ii.  386,  387 

clear  acceptance  in  Holmes  v.  Hoskins,  though  the  reverse  is 
stated  in  the  reporter's  note,  caused  by  the  usual  use  of  accept- 
ance as  though  it  were  the  correlative  of  '*  actual  or  construc- 
tive delivery " ii.  387 

where  different  purchases  are  made,  but  the  transaction  at  the 
close  is  made  entire,  acceptance  and  receipt  of  part  satisfies 
the  statute  as  to  the  whole ii.  387 

Lord  Campbell's  incorrect  dictum  in  Morton  v.  Tibbett,  that  there 
may  be  an  acceptance,  and  its  opposite,  a  rejection  of  the  same 
goods,  within  the  meaning  of  the  statute,  repeated  by  him  iu 
Tarker  v.  Wallis ii.  387,  388 

the  acceptance  and  actual  receipt  of  the  whole  of  the  goods  vests 
the  property  in  the  vendee,  and  generally  then  cannot  be  re- 
scinded by  either  of  the  parties  to  tlie  contract       ...        ii.  388,  389 

error  on  this  point  by  the  editor  of  lilackburn  on  Sales  pointed 

out ii.  389,  390 

Lord  Campbell's  view  of  the  statute  arising  out  of  his  miscon- 
struction of  it ii.  390 

Marvin  i'.  Wallis,  in  which  Lord  Campbell's  remarks  were  made, 
simplicity  itself,  —  a  case  of  clear  acceptance  and  of  actual  re- 
ceipt, the  retention  of  the  possession  in  the  vendor  being  as  a 
borrower,  the  lien  as  vendor  being  gone ii.  390,  391 

the  court  confused  by  treating  "  acceptance  "  as  "  actual  receipt," 
or  as  "possession,"  and  treating  the  question  as  to  whether 
any  other  than  "manual  prehension  "  would  show  an  accept- 
ance; misusing  "acceptance"  for  "receipt  " ii.  391,  392 

the  gross  errors  of  the  members  of  the  Court  of  Queen's  Bench 

pointed  out ii.  392,  393 

"actually  receive  "  does  not  mean  manually  receive,  but  any  ac- 
tual receipt,  whether  manual,  constructive,  or  symbolical     .     .      ii.  392 

deduction  from  Taylor  v.  Wakefield  is  that  delivery  and  receipt 

are  correlative  terms,  and  not  delivery  and  acceptance    .     .  ii.  393,  394 

purchase  of  an  ascertained  article  is  an  acceptance  of  it,  but  there 

must  be  an  actual  receipt  as  well ii.  395,  396 

the  acceptance  is  an  affirmation  of  the  particular  contract,  and 
when  with  this  is  the  receipt,  the  statute  is  satisfied,  and  the 
property  in  the  goods  is  in  the  vendee ii.  396-398 

Hart  V.  Bush  examined,  and  Lord  Campbell's  error  in  Morton  v. 

Tibbett  made  clear  by  his  own  language  in  the  former  case  ii.  397-400 

notwithstanding  the  contra  holding  in  Nicholson  v.  Bower,  a  pur- 
chase of  goods  by  sample,  the  bulk  agreeing  with  the  sample, 
is  an  assent  to,  and  acceptance  of,  such  goods  within  the  mean- 
ing of  the  statute ii.  402-405 

error  of  Cockburn,  C.  J.,  in  confounding  "accept"  with  "  re- 
ceive "  in  Nicholson  d.  Bower    ii.  405,  406 


ANALYTICAL   INDEX.  681 

[References  are  to  both  text  and  notes.] 

ACCEPTANCE  —  (Co/ia/iwcW). 

so  in  Castle  v.  Sworder  is  the  similar  incorrect  position  main- 
tained by  him  that  "  accept  "  and  "  actually  receive  "  are  equiv- 
alent       ii.  40G 

the  unsoundness  of  this  position  is  shown  by  Cusack  v.  Robinson, 
where  the  acceptance  was  by  the  purchase  of  specific  goods,  and 
was  prior  to  and  altogether  independent  of  the  actual  receipt    ii.  406-409 

assenting  or  agreeing  to  the  article  bought  as  the  subject  of  the 

sale  is  here  shown  to  be  the  "  accepting  "  of  the  statute      .  ii.  408,  400 

Cusack  V.  Robinson  affirmed  by  the  Bog  Lead  Mining  Co.  v. 

Montague ii.  410,  411 

acceptance  held  in   Simmonds  v    Humble  by  assenting  to  and 

approving  of  the  subject  of  the  sale ii.  411 

thei-e  being  also  an  actual  receipt  by  the  warehouseman  becoming 

the  bailee  of  the  buyers ii.  411 

Bramwell,  B.,  correctly  treats  "accept"  as  meaning  more  than 
"receive;"  considering  the  question  of  acceptance  under  the 
statute  as  one  of  the  most  difficult  in  the  law ii.  412 

distinction   in   other   cases   pointed    out    between   receipt    and 

acceptance ii.  412 

acceptance  of  goods  after  receipt  may  be  implied  where  not  duly 

repudiated ii.  412 

acceptance  held  to  be  a  recognition  of  the  goods  as  those  bought      ii.  412 

distinction  lost  sight  of  in  Kei-shaw  v.  Ogden  between  the  accept- 
ance and  actual  receipt  of  a  part  and  of  the  whole  of  the 
goods ii.  413,  414 

meaning  of  "  accepting  part  of  the  goods  "  sold ii.  414,  415 

Smith  u.  Hudson  stated  and  discu.ssed ii.  415-417 

different  meanings  of  "  accept "  further  shown ii.  417,  418 

illustrating  the  meaning  of  "accept"  and  "  actually  receive" 

of  the  statute ii.  418 

sale  of  specific  goods,  on  actual  receipt,  discharged  of  the  ven- 
dor's lien  and  of  the  right  of  stoppage  in  transitu,  satisfies  the 
statute,  and  vests  the  property  in  the  vendee ii.  418-421 

question  discussed  whether  sale  by  sample  of  goods  corresponding 
with  the  sample  satisfies  the  acceptance  so  that  after  their  ac- 
tual receipt  they  cannot  be  rejected;  —  conclusion,  on  princi- 
ple, and  from  the  latest  English  cases,  that  such  is  the  effect    ii.  418-431 

the  Amei'ican  cases  examined,   and  the  above  conclusion  sus- 

•  tained ii.  431-435 

ACCORD   AND   SATISFACTION. 

delivery  of  specific  articles  is  good  as i.  29 

payment  in,  extinguishes  the  debt  and  is  pleadable  in  bar  of  the 

action  for  the  debt i.  29 

where  other  articles  than  money  received  in  satisfaction  of  debt, 

court  will  not  estimate  their  value i.  29 

mere  accord  not  a  defence  at  law,  but  it  may  be  in  equity       .     .         i.  30 

plea  of  payment  in  goods  good  as  accord  and  satisfaqtion    ...      ii.  268 

so  is  that  of  the  giving  the  promissory  note  of  a  third  party    .     .      ii.  272 
(See  Barter.) 
ACQUIESCENCE.     (See  Laches,  Ratification.) 
ACTION.     (See  Bill  or  Note  ;  Indebitatus  Assumpsit  ;  In- 
fant; Mixing  of  Goods.) 


682  ANALYTICAL   INDEX. 

[Keferences  are  to  both  text  and  notes.] 
ACTIO'S— (Continued). 

for  price  of  goods  sold,  for  bill,  and  bill  given,  will  not  lie,  until 

period  of  the  bill  has  elapsed i.  7 

but  if  default  made  in  giving  bill,  action  will  at  once  lie  for  its 
value i.  7 

must  be  on  the  special  contract,  and  not  in  indebitatus  ansuinpsit  .  i.  S 

note  or  bill  payable  at  particular  place  must,  at  common  law,  be 

so  described  in  declaration i.  s 

and  fatal  variance  if  described  as  payable  generally i.  8 

see  for  form  of  count  for  not  accepting  bill  of  exchange  for  goods 

bargained  and  sold i.  8 

•where  declaration,  in  action  for  usury,  stated  specific  sum  of 
money  lent,  and  proof  showed  part  was  merchandise  taken  as 
cash,  evidence  held  good i.  8 

■where  goods  sold  are  payable  in  specific  articles,  action  must  be 

on  the  special  contract  and  not  in  indebitatus  assumpsit     ...  i.  S 

but  wheie  goods  are  received  as  money  they  may  be  declared  on 

as  such i.  8,  9 

but  where  a  loan  is  made  by  cheque  without  an  agreement  that 
the  cheque  is  to  be  considered  money,  it  cannot  constitute 
usury  till  tlie  cash  is  received i.  9 

an  indebitatus  count  for  horses  sold  and  delivered  has  been  sustained 

for  the  agreed  difterence  in  price,  on  an  exchaurje  of  horses  .     .  i.  9 

and  though,  where  there  is  an  agreement  to  exchange  goods  for 
goods,  and  part  of  the  goods  on  one  side  are  not  delivered,  the 
action  must  be  on  the  special  contract i.  9 

yet,  on  an  exchange  of  goods,  and  a  balance  struck,  it  has  been 
held,  that  the  balance  is  recoverable  as  money,  though  agreed 
to  be  paid  in  goods i.  9 

and  where  the  specific  value  of  the  goods  to  be  received  in  ex- 
change has  been  fixed,  on  their  not  being  delivered  the  stipu- 
lated value  can  be  recovered  as  money i.  9 

the  requirement  of  the  English  Companies  Act  that  the  stocks 
must  be  paid  for  in  cash  is  satisfied  by  payment  in  goods  re- 
quired by  the  company i.  9,  10 

and  where  the  terms  have  transpired  so  that  money  has  become 

due,  the  general  count  may  be  sustained i.  12 

but  if  the  contract  be  executory  and  subsisting,  and  the  action 
be  for  the  breach  for  the  recovery  of  damages,  the  count  must 
be  special i.  12 

"where  there  is  a  contract  as  to  price  the  terms  of  the  contract 

govern,  even  though  the  action  be  in  indebitatus  assumpsit     .     .         i.  13 

where  goods  are  sold  at  a  price,  to  be  paid  for  in  other  goods,  or 
to  be  paid  for  by  note  or  bill,  if  the  payment  for  the  goods  de- 
livered is  not  made,  or  if  the  note  or  bill  has  not  been  given, 
indebitatus  assumpsit  wiU  lie i.  13 

and,  on  principle,  where  a  price  has  not  been  fixed,  a  quantum 

valebat  count  for  the  value  is  good i.  11 

where  the  contract  remains  executory,  the  declaration  must  be 
on  the  special  contract,  and  tlie  measure  of  damages  would  be 
the  loss  caused  by  the  unexecuted  contract i.  14 

remedy  for  non-delivery  of  goods  as  payment  for  goods  sold  same 

as  for  non-delivery  of  bill i.  IS 


ANALYTICAL    INDEX.  683 

[References  are  to  both  text  and  notes.] 
ACTW^  —  (Continued). 

independent  of  whether  special  damages  for  non-delivery  of 
specific  goods  to  be  paid  for  in  other  goods,  held,  after  time 
for  their  delivery  had  elapsed,  the  contract  was  turned  into 
a  money  debt i.  21,  29 

on  principle  special  damages  are  also  recoverable  .     .     .     .       i.  21,  22,  23 

but  where  goods  were  sold  payable  in  land,  held,  though  the 
contract  was  oral,  the  vendee  was  only  entitled  to  be  paid  ia 
land,  the  vendor  of  the  land  being  willing  to  convey  it     .     .     .        i.  23 

so  also,  where  labor  was  consideration  for  the  land i.  23,  24 

action  for  money  had  and  received  will  not  lie  for  goods  sold  and 
delivered,  to  be  paid  in  other  goods,  unless  taken  at  a  money 
valuation  or  subsequently  sold i.  24 

but  if  subsequently  sold  for  money  or  goods  at  an  estimated 

price,  such  action  lies i.  24 

where  conversion  of  the  goods,  trover  or  replevin  lies     ....         i.  24 

or  where  wrong-doer  converts  them  into  money,  or  goods  at  a 
price,  the  tort  may  be  waived  and  the  money  or  price  be  re- 
covered           i.  24 

in  assumpsit  the  price  received  only  would  be  recovered,  but  in 

tort  the  value  would  be  recovered i.  24 

on  an  agreement  to  pay  in  notes  circulating  as  money,  only  the 

actual  value  of  the  notes  can  be  recovered i.  30 

Circuit  Court  case  holding  the  contrary  disapproved      ....         i.  31 

contract  to  deliver  "  thirty  pounds  in  military  certificates,"  satis- 
fied by  their  value i.  31 

where  right  in  bailee  to  elect  to  convert  bailment  into  sale,  action 
accrues  at  time  of  election,  and  Statute  of  Limitations  then 

.  begins  to  run i.  100 

where  no  right  of  election  and  conversion,  trover  lies  from  time 

of  conversion i.  100 

action  will  not  lie  against  parent  for  necessaries  to  infant  child 
without  his  express  or  implied  assent,  or  parent's  subsequent 
promise  to  pay i.  116 

such  promise  may  be  implied  from  slight  circumstances,  and 
father  held  liable  where  medical  attendance  furnished  infant 
at  parent's  residence,  on  latter's  credit  and  with  his  knowledge       i.  116 

but  request  of  father  for  medical  attendance  at  his  residence  on 
his  son  of  full  age  will  not  sustain  an  action,  nor  will  an  ex- 
press subsequent  promise  support  an  action  for  medical  ser- 
vices rendered  son  of  full  age  without  previous  request  of 
father i.  116 

infancy  is  bar  to  an  action  for  breach  of  instructions  as  super- 
cargo  i.  132 

but  not  to  an  action  for  the  goods i.  133 

infant  liable  in  trover,  although  goods  delivered  under  a  contract      i.  133 

English  and  American  decisions  examined  as  to  plea  of  infancy 

in  actions  ex  delicto.     (See  Infant.) i.  133-135 

action  lies  against  lunatic  for  necessaries,  furnished  either  before 
or  after  inquisition,  even  by  one  having  knowledge  of  in- 
capacity   i.  142 

drunkenness  good  plea  to  action   on   endorsement  made  with 

knowledge  of  holder  of  negotiable  paper i.  147 


(584  ANALYTICAL   INDEX. 

[Eeferences  are  to  both  text  and  notes.] 

ACTIO'S  —  (Condyiued). 

actions  under  implied  contracts  may  lie  where  not  only  no  assent 

by  party  to  contract  but  even  against  his  protest i.  159 

■where  wife  would  be  disentitled  to  succeed  in  action  against 
husband  for  restitution  of  conjugal  rights,  she  has  no  agency 
of  necessity i.  192 

wife  can  sue  and  be  sued  when  husband  banished     .     .     .     .    i.  192, 193 

and,  in  many  cases,  so  held  when  abandoned  by  husband  .     .     .       i.  193 

wife's  adultery,  proved,  is  a  defence  to  an  action  against  hus- 
band, for  wife's  necessaries i.  194 

evidence  to  that  etfect  in  divorce  court,  where  no  divorce  granted, 

does  not  alter  status  of  parties i.  195 

for  money  to  married  woman  abandoned  by  husband,  proceed- 
ings must  be  in  equity,  not  law i.  195 

so  also  as  to  remedies  against  her  separate  estate      .     .     .     .    i.  196,  197 

courts  of  law  recognize  no  power  to  contract,  and  generally  no 

property  apart  from  husband's i.  198,  199 

in  Rhode  Island,  under  Married  Women's  Acts,  wife  may  bring 
an  action  by  her  next  friend,  or  trustee  appointed  by  the 
court,  for  payment  of  his  indebtedness  to  her i.  229 

so  in  New  York,  where  female  mortgagee  marries  mortgagor,  her 

right  of  action  on  mortgage  not  extinguished i.  230 

married  women  in  New  York  liable,  can  be  sued  on  their  nego- 
tiable paper,  as  femes  sole i.  230 

in  Iowa,  she  and  her  husband  are  both  liable  for  family  ex- 
penses, and  may  be  sued  jointly  or  separately,  each  being  per- 
sonally liable i.  232,  233 

in  Pennsylvania,  may  sue  and  be  sued  in  i-espect  to  her  separate 

estate i.  236 

husband  need  not  be  joined  in  action  against yeme  sole  trader       .       i.  236 

liable  for  services  and  labor  as  feme  sole,  with  respect  to  her  sep- 
arate estate i.  236 

but  where  she  has  rights  of  feme  sole  trader,  not  liable  for  ser- 
vices unless  under  her  agreement  and  for  necessary  services     .       i.  230 

and  where  made  liable  for  family  support,  held  liable  under  her 

contract  for  her  mother's  funeral  expenses i.  23G,  237 

cannot  recover  for  payments  made  when  under  disability,  for 

stock,  when  continued  after  disability  removed i.  237 

not  liable,  in  Connecticut,  as  for  families  supplies,  for  supplies 

furnished  her  son  and  his  family i.  237 

but  liable  in  some  of  .the  States,  as  Iowa  and  Oregon,  though 

bought  by  the  husband,  on  his  promissory  note i.  242 

and  to  action  where  property  belonging  to  another  is  held  jointly 

by  her  with  her  husband i.  242 

where  wife  was  not  liable  for  goods  bought  in  her  name  in  Ten- 
nessee in  action  at  law,  held  in  chancery  that  title  in  goods  re- 
mained in  vendor,  but  that  other  goods  of  wife  were  not  subject 

to  the  liability i.  246 

courts  of  admiralty  have  jurisdiction  to  enforce  actions  for  neces- 
saries to  foreign  vessels,  whether  furnished  on  personal  credit 

or  not i.  289 

where   action   brought   to   rescind   contract,  laches   will   be   an 

answer i.  313 


ANALYTICAL   INDEX.  685 

[References  are  to  both  text  and  notes.] 

ACTION  —  (Continued). 

but  where  the  action  is  not  to  rescind  contract  but  is  in  nature 
of  action  for  deceit,  same  rule  does  not  apjily,  but  the  Statute 
of  Limitations  then  applies  as  to  time i.  314 

action  can  be  maintained  against  corporation  on  parol  executed 

contract  for  necessary  works  and  goods i.  317,  318 

where  transfer  of  stock  sought  to  be  enforced,  company  as  well  as 

seller  must  be  made  party i.  383-385 

special  assumpsit  lies  against  corporation  for  improperly  refusing 

to  permit  transfer  of  stock i.  389 

though  proceedings  to   enforce  claim  by  creditors  of  company 
against  stockholders  are  usually  in  equity,  suit  at  law  will  lie 
when  amount  of  stockholder's  indebtedness  is  fixed      ...       i.  395 
ACTUAL    RECEIPT.      (See    Acceptance;    Earnest   or    Part 
Payment  ;  Frauds,  Statute  of.) 

where  there  is  a  sale  and  acceptance  of  different  lots  of  goodsjn 
one  contract,  at  different  prices,  tlie  receipt  of  one  lot  takes 
the  contract  out  of  the  statute ii.  303 

agreement  that  prior  indebtedness  of  the  vendor  to  the  vendee 
shall  be  applied  in  purchase  of  goods,  with  other  facts,  held  to 
show  acceptance  and  actual  receipt  of  the  goods ii.  308 

the  act  must  be  mutual,  but  delivery  to  and  receipt  and  accep- 
tance by  an  agent  are  sufficient ii.  309 

and  the  agent's  authority  may  be  shown  as  in  other  cases  ...      ii.  309 

delivery  of  a  specific  part  of  the  goods  and  payment  for  them 

takes  the  contract  out  of  the  statute  as  to  the  residue      .     .     .      ii.  310 

actual  has  not  reference  to  the  kind  of  receipt,  but  the  "  actual 

receipt"  is  distinguished  from  the  "  acceptance  "      .     .     .     .      ii.  430 

mistakes  made  with  reference  to  this ii.  43(3 

"  accept  "  in  the  statute  means  assent,  not  "  receipt  "   ....      ii.  436 

the  actual  receipt  may  be  manual,  constructive,  or  symbolical     .      ii.  436 

actual  receipt  but  no  acceptance  in  an  Irish  case  stated      .     .  ii.  436 

actual  receipt,  by  transferring  property  by  delivering  vendor's 
order  to  warehouseman ii.  437 

and  where  no  actual  transmission  of  possession ii.  437 

specific  goods  purchased  being  an  assent,  the  receipt  of  a  sample 
as  part  of  the  bulk  will  sustain  lan  action  for  the  goods  de- 
stroyed by  fire  without  coming  into  the  vendee's  actual  pos- 
session   ii.  437 

but  as  the  receipt  must  be  of  the  very  goods  accepted,  where  the 
bulk  of  the  goods  received  are  not  according  to  sample,  the 
statute  is  not  satisfied ii.  437 

so  delivery  of  a  sample,  not  of  the  bulk,  is  not  a  receipt  of  part 

of  the  goods  accepted ii   437 

where  specific  goods  were  marked  by  the  vendee  with  her  name, 
the  marking  may  be  treated  as  an  actual  receipt,  if  there  is 
thereby  a  transfer  of  the  property ii.  437,  438 

as  it  may  be  by  other  acts  indicating  a  change  in  the  ownership     ii.  438 

so  there  maybe  a  constructive  receipt,  satisfying  the  "actual 
receipt  "  of  the  statute,  where  the  vendor  is  constituted  bailee 
of  the  goods  purchased ii.  438 

but  though  a  clear  acceptance,  there  is  no  actual  receipt  until  the 

goods  are  manually  or  constructively  out  of  the  vendor       .     .      ii.  438 


686  ANALYTICAL    INDEX. 

[References  are  to  both  text  and  notes.] 
ACTUAL   RECEIPT  —  {Continued). 

if  acceptance  and  intention  by  the  act  to  pass  the  property,  the 

statute  is  satisfied ii.  438 

no  actual  receipt  by  the  vendee  until  the  vendor  has  paited  with 

his  lien  on  the  subject  received ii.  438,  439 

no  constructive  receipt,  with  acceptance,  unless  trover  and  goods 

sold  and  delivered,  respectively,  will  lie  for  the  goods  received      ii.  439 

at  common  law  the  vendor  retains  his  lien  with  his  possession  for 

goods  sold  for  cash ii.  439 

neither  part  payment,  written  note,  nor  acceptance  and  actual 
receipt  of  part  of  the  goods,  though  satisfying  the  statute,  will 
destroy  the  vendor's  lien  on  the  undelivered  goods ii.  440 

where,  with  acceptance,  there  is  such  dealing  by  the  parties  with 
the  subject  of  the  sale  as  amounts  to  a  constructive  delivery  of 
it  in  foto,  the  lien,  stoppage  in  transitu,  and  right  of  rejection 
are  gone ii.  440 

outside  of  estoppel,  though  there  be  an  acceptance  of  the  goods, 
if  the  vendor's  lien  remain  on  them,  so  that  trover  will  not  lie 
for  them,  they  have  not  been  actually  received ii.  440,  441 

the  actual  receipt,  like  the  part  payment,  is  the  joint  act  of  both 

parties ii-  441 

where  reliance  is  placed  on  the  delivery  of  the  whole  of  the  goods, 
if  the  statute  is  satisfied,  the  reciprocal  actions  of  trover,  and 
for  goods  sold  and  delivered,  will  lie ii.  441 

apparent  but  not  real  exception  is  where  vendee  is  enabled  by 
assignment  of  bill  of  lading  to  transfer  goods  to  third  party,  but 
this,  too,  terminates  the  vendor's  lien  and  right  of  stoppage  in 
transitu ii.  442 

though  a  dealing  with  the  goods  by  the  vendee,  if  the  lien  con- 
tinue on  the  whole  of  the  goods  the  statute  is  not  satisfied  .     .      ii.  442 

while  the  carrier  or  warehouseman  usually  has  no  power  to  "  ac- 
cept "  the  goods,  his  power  to  actually  receive  them  for  the 
vendee  depends  upon  whether  such  is  the  ultimate  receipt  of 
the  vendee,  ending  the  right  of  stoppage  in  transitu     .     .     .  ii.  442,  443 

mistake  in  Carter  v.  Toussaint,  where  there  was  an  acceptance  but 
no  actual  receipt,  but  where  these  terms  are  confounded  by 
Abbott,  C.  J.,  and  Bayley,  J ii.  443 

in  Baldey  i'.  Parker,  where  there  was  an  acceptance,  the  term  is, 

as  used,  confounded  with  "  actual  receipt,"  —  the  case  stated  ii.  443,  444 

where  the  receipt  of  the  goods  can  be  refused,  and  where,  after 

receipt,  they  can  be  rejected ii.  443 

in  Phillips  v.  Bistolli  the  terms  are  again  confused;  it  and  other 

similarly  confused  cases  stated  and  examined ii.  444,  451 

marking  goods  is  not  an  actual  receipt  of  them  while  the  posses- 
sion of  vendor  as  owner  continues  ii.  44G 

acts  or  declarations  by  vendee  may  tend  to  show  acceptance,  but 
not  actual  receipt,  so  long  as  vendor's  lien  continues  on  the 
whole  of  the  goods ii.  446,  447 

fallacy  of  the  court  in  Smith  v.  Surman  as  to  the  effect  of  the 
continuance  of  the  lien,  when  there  has  been  an  acceptance  and 
receipt  of  only  part  of  the  goods ii.  447 

so  long  as  vendor's  lien  attaches  to  all  the  goods,  there  is  no  act- 
ual receipt,  though  some  of  the  materials  used  may  be  vendee's     ii.  447 


ANALYTICAL   INDEX.  687 

[References  are  to  both  text  and  notes.] 

ACTUAL   RECEIPT— (Co/.//«Me(/). 

though  receipt,  so  that  even  the  right  of  stoppage  in  transitu  is 
gone,  yet  when  no  acceptance,  the  goods  may  be  rejected     .  ii.  447,  448 

where  goods  are  accepted  so  that  at  common  law  the  property 
would  vest  in  the  vendee  subject  to  the  vendor's  lien,  without 
an  actual  receipt,  the  statute  is  not  satisfied ii.  448 

declarations  of  vendee,  to  show  an  actual  receipt,  where  there  has 
been  none,  of  no  more  value  than  similar  declarations  as  to 
part  payment  where  there  has  been  none ii.  448 

cases  where  acts  of  vendees  constitute  acceptance,  but  not  the 

actual  receipt  of  the  statute ii.  449 

confusion  in  the  English  cases  on  the  subject  down  to  the  pres- 
ent time ii.  449 

where  the  purchase  is  of  different  articles,  the  question  is,  as  to  the 
acceptance  and  receipt  of  a  part,  whether  thei'e  is  one  entire 
contract ii.  450 

■where  there  is  a  receipt  and  the  parties  are  not  ad  idem  as  to  the 

subject,  there  is  no  acceptance ii.  450 

misstatement  in  Wright  v.  Percival  as  to  the  effect  of  the  accept- 
ance and  actual  receipt  of  the  whole  of  the  goods,  as  to  the  lien, 
stoppage  in  transitu,  and  right  of  rejection ii.  4.50,  451 

in  such  case,  the  goods,  without  fraud,  cannot  be  rejected  for 

quantity  or  quality ii.  451 

but  where  only  a  part  is  received  and  accepted,  goods  which  are 

not  the  balance  of  those  bought  may  be  rejected ii.  451 

acceptance  may  be  implied  after  receipt  by  acts  of  the  vendee,  but 
the  actual  receipt  cannot  be  implied  where  there  is  no  trans- 
mission of  the  possession  to  the  vendee ii.  451,  452 

change  in  marks  on  the  goods,  on  arriving  at  warehouse,  not  an 
actual  receipt  of  them,  so  long  as  they  are  held  for  the  vendor 
with  his  lien  attached ii.  452 

from  subsequent  dealing  with  goods  after  receipt  of  them  accept- 
ance may  be  implied ii.  452 

but  where  there  is  no  actual  receipt,  delay  in  the  vendee  in  noti- 
fying vendor  of  his  refusal  to  receive  will  not  satisfy  the 
statute ii-  452,  453 

mistake  of  Coleridge,  J.,  in  Bushel  v.  Wheeler,  in  assuming,  be- 
cause a  note  in  writing  will  satisfy  the  statute,  that  therefore 
stoppage  in  transitu  may  continue  on  the  whole  of  the  goods, 
and  yet  they  be  actually  received ii.  453 

fallacy  of  the  constantly-quoted  dictum  in  this  case  exposed   .    ii.  453-455 

where  the  contract  for  the  goods  is  an  entire  one,  for  goods  made, 
or  made  and  to  be  made,  the  acceptance  and  receipt  of  a  part 
takes  the  case  out  of  the  statute  as  to  the  whole     .     .     .     .  ii.  454,455 

in  Farina  v.  Howe  the  distinction  is  taken  between  the  accept- 
ance and  the  actual  receipt  of  the  statute ii.  455,  456 

where  there  is  a  return  within  a  reasonable  time  after  actual  re- 
ceipt, the  goods  are  rejected,  —  not  accepted ii.  456 

Curtis  V.  Pugh  questioned,  where  the  jury  found  the  goods  were 
the  very  goods  which  were  purchased,  and  were  actually 
received ii.  456 

where  goods  are  not  accepted  and  actually  received,  and  no  laches, 

they  may  be  rejected ii.  456 


688  ANALYTICAL    INDEX. 

[References  are  to  both  text  and  notes.] 

ACTUAL  RECEIPT— (C'on/mwef/). 

but  where  the  specific  goods  purchased  are  received,  they  have 

been  both  accepted  and  received,  and  caTinot  be  rejected      .     .      ii.  450 

this  point  seemingly  apprehended  by  Lord  Denman  in  Curtis  v. 

Pugh ii.  457 

obtaining  actual  possession  of  specifically  selected  goods  pre- 
viously bought  satisfies  the  statute ii.  457 

in  Morton  v.  Tibbett,  the  vendee  not  only  accepted  and  received 
a  bulk  sample  of  the  goods  purchased,  but  the  residue  was  iu 
his  actual  receipt  and  disposition,  and  was  sold  by  him,  show- 
ing an  implied  acceptance  of  the  whole,  with  the  vendor's  lien 
discharged ii.  457 

where  there  is  an  actual  receipt  of  the  goods,  whether  their  treat- 
ment shows  an  acceptance  of  them  is  for  the  jury       .     .     .  ii.  457,  453 

where  goods  are  warehoused  in  the  vendee's  name,  so  that  the 
tra7isitus  is  ended,  there  is  an  actual  receipt,  though  there  may 
still  be  the  right  of  rejection ii.  45S 

and  so  where  they  are  delivered  to  the  vendee's  warehouse  so  that 

the  vendors'  rights  as  unpaid  vendors  are  gone ii.  453 

but  where  the  vendee  refuses  to  receive  the  goods  from  the  car- 
rier, the /)Yni.s/7u^- has  not  ceased,  and  the  vendor  can  reclaim 
the  goods ii.  453 

but  as  long  as  the  right  to  stop  in  tmnxltu  continues  there  is  no 
actual  receipt,  but  this  is  ended  by  a  transfer  by  the  vendee 
of  the  bill  of  lading,  which  makes  a  constructive  "actual 
receipt"     • ii.  459 

the  late  case  of  Kibble  i-.  Gough  sliows  that  where  goods  are  sold 
by  sample,  and  no  bulk  sample  accepted  and  received,  the  ac- 
tual receipt  of  the  goods  agreeing  with  the  sample  satisfies 
the  statute,  coinciding  with  the  contention  in  this  work  .     .  ii.  459,  460 

but  fallacy  even  in  this  case,  by  Brett.  J.,  in  treating  tiie  receipt 
as  including  acceptance,  and  in  relying  on  Lord  Campbell's 
unsound  diclinn  in  Morton  v.  Tibbett  that  there  can  be  both  an 
acceptance  and  a  rejection  of  the  same  goods ii.  4i'iO 

the  law  as  to  actual  receipt  and  acceptance  fully  re-stated      .  ii.  4GJ,  4(>l 

the  errors  abounding  in  the  well-decided  recent  case  of  Kibble  c. 

Gough  pointed  out ii.  462-405 

propositions  stated,  deduced  fiom  the  well  decided,   but  badly 

reasoned  case  of  Kibble  v.  Gough ii.  463,  464 

the  recent  case  of  Rickard  v.  Moore,  also  sustaining  the  reasoning 
in  this  work  ;  Bramwell,  L.  J.,  confessing  himself  puzzled  as 
to  what  constitutes  acceptance  within  the  statute  ....  ii.  463.  401 

the  two  cases  compared  and  distinguished,  and  the  principles  of 
law  governing  them  as  laid  down  in  tiiis  book,  parts  VI.  and 
VII.,  sustained ii.  465,  460 

the  very  late  case  of  Page  v.  ^Morgan,  on  the  principles  laid  down 
in  this  case,  in  harmony  with  the  two  prior  cases;  all  of  them 
well-decided  and  all  sustaining  the  view  in  this  work      .     .  ii.  466-4GS 

distinction  made  herein  sustained,  and  unsound  dictum  of  Lord 

C.  J.  Campbell  shown,  in  Hunt  v.  Ilecht ii.  iGS 

there,  an  actual  receipt,  but  no  acceptance,  and  a  rejection     .  ii.  468,  400 

in  Holmes  r.  Hoskins  there  was  an  acceptance,  but  not  a  receipt 

by  "  actual  or  constructive  delivery  " ii.  460.  470 


ANALYTICAL   INDEX.  689 

[References  are  to  both  text  and  notes.] 
ACTUAL   RECEIPT  —  {Continued). 

Parke,  B.,  coming  very  near  to  the  correct  discrimination  between 
the  acceptance  and  receipt,  but  still  failing,  with  so  many 
others,  to  correctly  appreciate  the  distinction  between  them  ii.  469,  470 

further  English  cases  stated  and  examined  as  to  the  "  actual  re- 
ceipt"  of  the  statute    ii.  470-478 

summary  as  to  the  effect  of  the  acceptance  and  actual  receipt  of 

the  whole  and  of  only  part  of  the  goods ii.  476-481 

effect  of  delivery  to  a  carrier  considered  as  to  the  Statute  of 
Frauds,  and  as  to  the  right  of  bringing  an  action  for  the  goods 
as  for  goods  sold  and  delivered ii.  481-488 

mistake  made  by  Campbell  in  treating  "  actual  "  in  the  statute 

as  used  in  contradistinction  to  "  constructive  "      .     .     .     .  ii.  488,  489 

error  in  Bushel  v.  Wheeler  in  treating  an  acceptance  as  alone 
necessary  under  the  statute,  leading  to  the  false  deduction  that 
it  is  absurd  to  say  what  is  an  acceptance ii.  490 

distinction  again  shown  between  acceptance  and  actual  receipt  ii.  490,  491 

and  where  there  is  the  latter,  what  is  the  former,  to  satisfy  the 

statute,  deduced  and  sustained ii.  491-494 

examination  of  the  cases  in  this  country  on  the  question  discussed 

in  this  Part " .  ii.  494-502 

and  the  conclusion  from  the  whole  discussion ii.  502 

the  distinction  existing  between  the  meaning  of  the  accepting  of 
the  statute  and  that  of  "  appropriation  "        ii.  253-256,  311,  312,  330, 

503,  504 
AGENCY.     (See  Principal  and  Agknt.) 
AGENTS  OF  NECESSITY.     (See  Married  Women;  Ship-Masters.) 

contract  between  principal  and  one  dealing  with  agent  of  neces- 
sity is  an  implied  contract i.  143 

married  women  and  ship-masters  are i.  143 

but  where  married  women  sufficiently  supplied  with  necessaries, 

agency  ceases i.  144 

married  women  agents  of  necessity i.  159-195 

as  also  are  ship-masters i.  160 

where  repairs  of  ship  are  necessary,  master  is  agent  of  necessity 
to  have  them  done i.  160 

such  agency  in  cases  of  married  woman  founded  on  marital 

rights,  but  arises  from  necessity i.  178 

necessities  of  the  case  demand  that  wife  whose  husband  has  been 
banished  or  who  has  abjured  the  realm,  may  make  contracts 
as  feme  sole i.  206 

and  so,  when  her  husband  is  an  alien  enemy i.  207 

the  necessity  is  a  moral  necessity i.  252 

where  sale  made  by  one  claiming  to  be  agent  of  necessity,  and 

no  necessity  for  the  sale,  there  is  no  such  agency i.  271 

in  some  cases  where  vendee  has  wrongfully  refused  to  accept 

goods,  vendor  has  been  agent  of  necessity  to  resell  them      .     .       i.  271 

master's  authority  being  based  on  necessity,  to  constitute  valid 
bottomry   bonds  money  must   be  for  the   necessities  of  the 

ship , i.  283, 284 

AGGREGATTO  MENTIUM.     (See  Frauds,  Statute  of.) 

mistake  of  Parsons  as  to  an  agreeing  mind  being  required  in  con- 
tracts of  lunatics,  drunkards,  infants,  and  married  women  .     .       i.  159 

VOL.  II.  44 


690  ANALYTICAL    INDEX. 

[References  are  to  both  text  and  notes.] 
AGGREGATIO   MENTIUM—  (Continued.) 

distinction  in  this  respect  between  express  and  implied  contracts       i.  159 
(See  Married  Womex.) 
ALIEN  ENEMY. 

vfiie  oi,  \\ah]e  fis  feme  sole 1.  206 

ALLOTMENT  OF  SHARES. 

notice  of,  must  be  communicated  to  the  applicant  for  shares  .     .       i.  352 

not  sufficient  to  give  notice  of,  to  the  company's  own  agent,  unless 

he  is  applicant's  agent i.  353 

■where  application  is  by  mail,  notice  of  allotment  by  mail  com- 
pletes the  contract i.  353 

where  notice  of  allotment  is  not  pursuant  to  application  for  shares, 

there  is  no  contract i.  353,  354 

an  agreement  to  "  place  "  shares  is  not  an  agreement  to  accept 

them i.  354 

•   an  agreement  to  accept  shares  makes  the  contract i.  354 

■where  shares  are  allotted  and  accepted,  allottee  liable  as  con- 
tributor, though  agreement  otherwise i.  355 

where  notice  of  allotment  given  to  wrong  person  there  is  no 

contract i.  355 

but  where  no  notice  of  allotment,  and  allottee  executes  transfer 

of  them,  he  waives  notice 1,  355,  356 

but  payment  for  shares  by  applicant  is  not  waiver,  where  no 

notice  of  allotment  is  given i.  356 

allottee  may  constitute  another  his  agent  to  receive  notice  of 

allotment  and  acceptance  of  shares i.  356 

agency  principles,  as  acquiescence  and  repudiation,  apply  in  these 

cases i.  356 

from  party  acting  as  owner  of  shares,  and  becoming  and  acting 

as  director i.  356 

where  application  for  shares,  to  make  contract  there  must  be  an 

allotment  and  due  notice i.  357 

remarkable  case  on  the  subject  (Nasmith  v.  Manning)  in  the 

Canadian  courts i.  357 

unsound  reasoning  in  this  case,   of  Ritchie,  C.  J.   of   S.  C.   of 

Canada,  exposed i.  358-362 

contradictory  holdings  of  Gwynne,  J.,  and  Hagarty,  C.  J.,  in  the 

extremely  simple  case i.  362,  363 

the  fact  of  the  allottee  having  made  an  application  for  shares  in- 
stead of  being  applied  to  to  take  shares,  immaterial;  notice  of 
allotment  equally  necessary i.  363,  364 

where  allotment  not  made  in  reasonable  time,  allottee  may  re- 
scind his  application i.  364 

where  shares  were  allotted  to  an  applicant,  but  no  notice  to  him 
of  allotment,  though  calls  thereon  paid,  but  not  to  applicant's 
knowledge,  held  no  contract i.  364,  365 

in  this  case  the  unsoundness  of  Ritchie,  C.  J.,  in  the  Canadian 

case  plainly  appears i.  365 

general  trend  of  English  cases  on  the  subject  shown       .     .     .    i.  365,  366 

but  where,  under  the  English  Companies'  Acts,  a  party  sub- 
scribes the  articles  of  association  for  shares,  he  becomes  liable 
therefor  without  allotment i.  366 

conditional  allotment  made  may  be  cancelled  where  condition 

not  performed i.  370 


ANALYTICAL   INDEX.  691 

[References  are  to  both  text  and  notes.] 

ALLOTMENT  OF    SHARES  — (Continued). 

but  where  allottee  from  notices  should  know  natm-e  of  shares 

allotted,  he  cannot  claim  that  they  should  be  different  ...  i.  370 
and  may  lose  right  to  object  by  delay  and  acquiescence  ...  1.  370 
where  shares  are  provisionally  allotted,  allottee  not  complying 

therewith  not  liable  for  shares i.  371 

but  difference  between  buying  shares  from  an  agent,  giving  re- 
ceipt for  them  and  paying  on  account,  and  merely  applying 

for  shares i.  393,  394 

where,  under  the  Statute  of  Frauds,  money  is  sent  through  the 
post-ofRce,  unauthorized  by  the  vendor,  he  may  refuse  to  re- 
ceive it,  and  the  contract  is  not  taken  out  of  the  statute       .    ii.  310,  311 
APPOINTxAIENT,   POWER  OF.      (See  Married  Women.) 
APPROPRIATION. 

differs  from  the  accepting  of  the  Statute  of  Frauds     ii.  253-256,  311,  312, 

336,  503,-504 

assented  to,  the  property  passes ii.  341 

there  may  be  an  acceptance  and  actual  receipt  of  part  of  goods 
sold  to  satisfy  the  Statute  of  Frauds,  without  an  appropriation 

of  the  bulk ii.  386,387 

ARBITRATORS. 

their  acts  are  invalid  where  they  are  the  secret  agents  of  either 

of  the  principals i.  622,  623 

ARTICLES    OF    ASSOCIATION.      (See    English    Companies 

Acts.) 
ASSENT.     (See  Acceptance;    Aggregatio  Mentium;   Allot- 
ment OF  Shares;  Frauds,  Statute  of;  Intention  of 
Parties.) 
mutual,  of  parties,  or  intention,  to  govern  in  construction  of  con- 
tract of  sale i.  7 

may  be  implied  from  facts i.  354,  355 

as  being  owner  of  shares  by  acting  as  director i.  356 

though  assent  to  sale  generally  necessary,  may  be  inferred  from 

nature  of  transaction i.  398-400 

ATTACHxMENT. 

proceeds  of  timber  sold  by  husband  off  wife's  separate  estate  to 

pay  off  mortgage  exempt  from  attachment  against  husband      .       i.  226 
AUCTION   SALES.     (See  Frauds,  Statute  of.) 

within  Statute  of  Frauds ii.  321 

AUCTIONEERS.     (See  Principal  and  Agent.) 

having  a  lien  on  goods  can  sue  in  their  own  names i.  571 

BAILMENT. 

where  identical   subject-matter  in  its  original  or  in  an  altered 

form  is  to  be  returned,  it  is  a  bailment  and  not  a  sale     ...  i.  4 

■where   goods  are  lent  and  other  ^oods  are  to  be  returned  for 

them,  assumpsit  for  goods  sold  and  delivered  will  not  lie  .  .  i.  13 
that  which  is  strictly  a  barter  often  called  a  sale,  as  in  questions 

between  sales  and  bailments i.  14 

where  one  receiving  goods  is  not  bound  to  return  them,  but  may 
deliver  any  other  of  equal  value,  it  is  a  sale  or  a  loan,  and  the 

title  vests  in  the  receiver i.  14 

goods  charged  to  the  party  receiving  them,  passing  into  his  actual 
possession  and  under  his  absolute  control,  differ  from  goods 


692  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notesl 

BAILMENT  —  (Continued). 

delivered  to  be  manufactured  and  returned,  and  are  a  sale  and 

not  a  bailment i.  15 

so  where  he  receives  goods  for  his  own  use  or  consumption,  and 
is  not  bound  to  return  the  identical  article  in  its  original  or 
altered  shape,  it  is  a  sale  and  not  a  bailment 1.  15 

in  such  case  where  the  title  passes  to  the  receiver  it  is  a  sale,  not 

a  bailment i.  15 

but  goods  supplied  to  an  agent  for  sale,  who  is  to  return  cash  or 
articles  of  trade  received  for  the  goods,  is  not  a  sale  of  goods, 
by  the  principal  to  his  agent       ...  i.  15 

goods  delivered  to  receiver,  and  mixed  by  him  with  other  goods, 
and  sold  by  him,  to  the  knowledge  of  deliverer,  receiver  hav- 
ing right  to  return  an  equal  quantity  of  goods  or  pay  for  them 
in  money,  is  a  sale i.  15 

as  it  is,  where  a  party  delivers  grain,  and  tacitly  consents  that 
the  receiver  may  use  and  grind  up  the  wheat  and  ship  and  sell 
the  flour i.  15 

sheep  delivered  to  be  returned  two  years  later,  in  as  good  con- 
dition and  a(fe  as  when  delivered,  a  sale  and  not  a  bailment      .         i.  16 

and  so  where  cows  and  sheep  of  equal  age  and  quality  were  to  be 

returned  at  the  end  of  the  term i.  10 

where  property  passes,  for  valuable  consideration,  whether   in 

money  or  money's  worth,  it  is  a  sale  and  not  a  bailment    .     .  i.  20,  27 

bailment  is  delivery  and  transfer  of  special  but  not  general  prop- 
erty in  subject  delivered i.  92 

where  subject  let  for  trial  with  a  view  to  sale,  the  letting  is  a 

bailment,  not  a  sale i.  92 

where  identical  thing  and  not  an  equivalent  is  to  be  returned,  it 

is  a  bailment i.  92 

where  grain  delivered  to  miller,  to  be  paid  for  in  specific  quantity 

of  flour,  sale  and  not  bailment i.  93 

where  grain  was  delivered  in  Minnesota  under  agreement  for 
payment  at  market  price,  or  same  quantity  to  be  returned,  held 
sale  and  not  bailment i.  93 

held  that  act  subsequently  passed  there  that  grain  delivered  for 
storage  was  bailment  and  not  sale,  did  not  change  the  law,  but 
that  a  sale  was  still  a  sale  and  not  bailment i.  93,  94 

where  property  placed  in  receiver's  possession  and  under  his  ab- 
solute control,  sale  and  not  bailment i.  94-100 

where  goods  are  delivered  under  contract  of  bailment,  mixing 

with  other  goods  by  the  bailee  does  not  create  a  sale  ....        i.  94 

where  goods  are  received  under  contract  to  pay  market  price,  sale 

and  not  bailment i.  94 

where  bailor  retains  right  to  elect  for  return  or  payment,  it  is  a 

bailment,  and  bailor  can  compel  a  return  of  his  property     .     .         i.  95 

but  where  receiver  has  the  right  to  treat  the  property  as  his  own, 
deliverer  to  elect  either  to  take  current  price,  or  receive  other 
property,  it  is  a  sale  and  not  a  bailment,  and  the  property  in 
goods  delivered  vests  in  receiver i.  95 

so  where  the  goods  are  delivered  under  contract  for  payment  at 

delivery,  or  when  subsequently  demanded i.  95 

where  grain  left  to  be  ground  under  agreement  for  return  of 


ANALYTICAL    INDEX.  693 

[References  are  to  both  text  and  notes.] 

BAILMENT  —  (Continued). 

flour,  though  miller  might  return  the  flour  made  from  any 
other  wheat,  held  a  bailment,  and  that  miller  was  not  respon- 
sible for  its  accidental  loss  by  fire    . i.  96 

where  grain  is  mixed  with  other  grain  in  a  public  warehouse,  and 

the  title  remains  in  the  bailor,  it  is  a  bailment,  not  a  sale  .     .         i.  96 

where  receiver  has  right  to  use  the  property  as  he  pleases,  it  is  a 
sale  and  not  a  bailment,  though  the  deliverer  has  the  option 
of  a  subsequent  day  by  which  the  price  is  to  be  fixed  ....         i.  96 

where  this  option  not  exercised  in  reasonable  time,  the  other  party 

can  fix  the  day i.  96 

though  parties  expressly  agree  that  the  property  in  goods  deliv- 
ered shall  remain  in  deliverer,  where  the  facts  show  that  the 
absolute  property  has  passed,  it  is  a  sale,  and  not  a  bailment  .         i.  96 

or  in  such  case  use  any  device  to  make  it  appear  not  a  sale     .     .         i.  97 

but  when  loss  to  the  property  by  sale  or  fire  is  in  deliverer,  it  is 

a  bailment ,. »     .     .         i.  98 

even  where  the  agreement  provides  for  a  future  passing  of  the 

property  on  payment i.  98 

where  price  was  fully  paid  in  notes  for  goods  delivered  under  an 
agreement  that  a  bill  of  sale  would  be  given  of  them,  it  was 
held  to  be  a  sale  with  provision  to  convert  into  bailment,  and 
that  the  property  had  passed i.  98 

where  an  absolute  transfer  of  securities  made  to  parties  as  own- 
ers, with  right  of  redemption  ;  if  right  not  duly  exercised,  origi- 
nal transaction  a  sale,  and  not  a  bailment  or  pledge   ....         i.  98 

where  chattel  received  subject  to  become  property  of  holder  only 
on  payment,  until  then  it  is  not  a  sale,  but  bailment,  —  prop- 
erty only  vests  on  payment  being  made i.  98,  99 

cases  of  mixed  sale  and  bailment i.  99,  100 

where  doubtful  which,  question  for  jury  on  facts i.  100 

where  bailment  convertible  into  sale  at  election,  property  passes 

on  bailee's  election        i.  100 

bonds  delivered  "  to  be  returned  on  call,"  though  notes  given  for 

them,  bailment  and  not  sale i.  100 

where  right  of  election,  Statute  of  Limitations  only  runs  from 

time  election  exercised i.  100 

where  no  right  of  election,  and  conversion,  trover  lies  from  time 

of  conversion i.  100 

in  bailment  only  a  special  property  in  bailee i.  101 

bailee's  duty  and  liability  differ  from  those  as  between  principal 

and  agent i.  102 

BANISHMENT.     (See  Married  Women.) 

wife  can  sue  and  be  sued  when  husband  banished     .     .      i.  192,  193,  206 
BARTER.     (See  Action;   Definitions;  Earnest  or  Part  Pay- 
ment.) 

or  exchange  is  a  commutation  of  goods  for  goods i.  1 

legal  effect  of  sale  and  barter  or  exchange  the  same i.  1 

principal  distinction  between  barter  and  sale  is  merely  matter  of 
pleading,  as  in  case  of  sale  for  note  or  bill,  where  the  action  is 
on  the  special  contract,  and  not  in  indebitatus  assumpsit  ...       i.  8,  9 

Bigelow,  J.,  treats  the  distinction  between  sale  and  barter  as  one 
rather  of  shadow  than  of  substance,  and  practically  as  not 
existing i.  10, 11 


694  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

BARTER—  Continued. 

even  strictly  technical  barters  often  called  sales,  as  in  questions 

between  sale  and  bailments i.  14,  24-26 

cases  where  barter  was  distinguished  from  a  sale  by  the  fixing  or 

non-fixing  of  a  specific  price i.  17 

where  goods  are  delivered  upon  a  contract  for  a  valuable  consid- 
eration, whether  in  money  or  money's  worth,  the  property 
passes,  the  transaction  being  a  sale i.  26,  27 

action  for  money  had  and  received  will  not  lie  for  goods  deliv- 
ered in  barter,  where  not  taken  at  a  valuation  and  not  subse- 
quently sold i.  24 

but  if  subsequently  sold,  whether  for  money,  or  goods  at  esti- 
mated price,  the  action  lies i.  24 

an  agent  to  sell  goods  has  no  authority  to  barter  them  ....         i.  29 

oral  agreement  for  exchange  of  land  within  Statute  of  Frauds     .         i.  92 

barter  and  sale  as  much  alike  as  the  fixtures  and  accessories  of 

a  railroad ii.  250 

exchange  or  barter  comes  within  the  term  "sale "  in  the  4th  and 

17th  sections  of  the  statute ii.  265 

exchanges  of  land  held  to  be  within  the  4th  section ii.  265 

but  where  the  compensation  has  been  made  and  the  other  relies 

on  the  statute,  the  compensation  may  be  recovered     .     .     .  ii.  265,  266 

parol  exchanges  of  land  at  common  law,  within  certain  limits,  held 

valid  prior  to  29  Car.  2 ii.  266 

though  parol  sales  and  exchanges  are  equally  within  the  statute, 
in  exchange  the  possession  of  one  more  strongly  shows  the  na- 
ture of  the  possession  by  the  other ii.  266,  267 

equivalent  in  case  of  a  sale  to  possession  of  the  land  by  the  one 

and  payment  received  by  the  other ii.  267 

in  exchanges  both  parties  are  buyers  and  sellers,  and  both  equally 

warrant ii.  267 

an  oral  agreement  to  exchange  a  monument  and  a  sum  of  money 

for  land  is  within  the  statute ii.  267,  268 

and  therefore,  when  the  monument  is  completed  and  refused,  the 

monument  cannot  be  recovered  for  under  the  statute      ...      ii.  268 

in  an  exchange  of  a  chattel  and  money  for  another  chattel,  the 
delivery  of  the  one  chattel,  as  earnest  or  part-payment,  takes 
the  case  out  of  the  statute  as  to  the  other ii.  268 

not  only  under  the  Statute  of  Frauds,  but  under  analogous  stat- 
utes, an  exchange  or  payment  in  goods  is  equivalent  to  a  sale 
or  payment  in  money ii.  268 

plea  of  payment  in  goods  is  good  as  an  accord  and  satisfaction     ii.  268,  269 

Indiana  case  contra,  unsound  and  overruled     .     .  .     .    ii.  268,  269 

payment  may  be  in  anything  accepted  as  such  payment     ...      ii.  269 

usp  of  sacks,  where  value  agreed  on,  held  part-payment  to  satisfy 

the  statute ii.  269,  270 

may  be  in  property  or  services,  or  anything  of  value  agreed  upon 

between  the  parties ii.  269 

so  a  check,  subsequently  paid,  held  a  payment  to  satisfy  the  New 
York  Statute  of  Frauds,  as  made  "  at  the  time  "  the  check  was 
given ii.  270 

it  has  been  held  that  the  giving  of  the  vendee's  own  note  for 

goods  was  not  a  payment  to  satisfy  the  statute ii.  270 


ANALYTICAL   INDEX.  695 

[Eeferences  are  to  both  text  and  notes.] 

BARTER  — (Continued). 

but  the  payment  by  the  vendee  to  the  vendor  of  the  latter's  own 

note  is  a  good  paymeut ii.  270,  271 

good,  if  there  is  an  actual  parting  with  anything  of  value  .     .     .      ii.  271 
under  intoxicating  liquor  acts,  liquor  exchanged  for  services  is  in 

effect  a  sale ii.  271 

a  previous  debt  from  the  vendor  to  the  vendee  may  be  a  good 
payment  by  the  latter  if  discharged,  but  an  agreement  that  it 
shall  be  so  treated  does  not  take  a  case  out  of  the  statute     .  ii.  271,  272 
exchange  of  chattels  being  within  the  statute,  a  payment  of  ear- 
nest will  take  the  case  out ii.  272 

the   plea  of  payment  of  the  promissory  note  of  a  thii'd  party  is 

good  as  an  accord  and  satisfaction ii.  272 

and  a  bill  of  exchange  has  been  held  to  be  a  good  payment  under 

the  English  Bankruptcy  Act ii.  272 

so  is  a  paymeut  made  in  goods ii.  272 

and  where  the  statute  does  not  require  that  the  payment  must  be 

in  money,  it  is  good  in  money  or  money's  worth ii.  272 

but  where  the  goods  are  delivered  as  a  sale,  it  is  a  set-off,  and  not 

a  payment ii.  272 

to  take  the  case  out  of  a  Statute  of  Limitations  where  the  pay- 
ment must  be  in  cash  or  its  equivalent,  the  receipt,  under  an 
agreement,  of  services  or  goods  will  have  that  effect   ....      ii.  272 
so  held  where  goods  were  to  be  supplied  in  part-payment  of  a 

bill  of  exchange       ii.  272,  273 

so  a  bill,  though  subsequently  dishonored,  held,  under  the  Statute 

of  Limitations,  to  be  a  good  payment ii.  273 

payment,  treated  in  its  popular  sense,  and  not  as  in  satisfaction       ii.  273 
where  anything  is  received  in  reduction  of  a  debt,  it  is  sufficient 

to  take  the  case  out  of  the  Statute  of  Limitations       .     .     .  ii.  273,  274 
not  essential  that  money  shall  actually  pass  between  the  parties, 
to  constitute  a  payment  of  interest  to  take  the  case  out  of  the 
Statute  of  Limitations  ;  treating  it  as  so  passing  may  be  suf- 
ficient    ii.  274 

so,  under  a  special  act,  work  has  been  treated  as  a  loan  to  church- 
wardens authorized  to  borrow  money ii.  274 

and  board  and  lodging  have  been  treated  as  a  money  payment    .      ii.  274 
BILL  OR  NOTE,  etc.      (See  Action  ;  Municipal  Corporation 
Transactions.) 
where  goods  payable  by,  and  bill  given,  action  will  not  lie,  until 

period  of  bill  has  elapsed i.  7,  9 

but  if  default  made  in  giving  bill,  action  will  at  once  lie  for  its 

value i.  7 

•where  payment  by  note  or  bill,  action  for  non-delivery  of  the  bill 

must  be  on  the  special  contract,  and  not  in  indebitatus  assumpsit    i.  8,  17 
where  payable  at  particular  place,  must  be  so  described  in  declar- 
ation       i.  8 

fatal  variance,  if  described  as  payable  generally i.  8 

but  indebitatus  assumpsit  will  lie,  either  where  goods  are  sold  at  a 
price,  to  be  paid  for  in  other  goods,  or  where  the  agreement  is 
that  a  bill  or  promissory  note  is  to  be  given  in  payment,  if  the 
goods  are  not  delivered,  or  the  note  or  bill  has  not  been  given, 
and  the  period  of  credit  has  expired 1.  11-14 


696  ANALYTICAL   INDEX. 

[Eeferences  are  to  both  text  and  notes.] 

BILL    OR  laOTE  — (Continued). 

if  the  bill  be  not  given,  the  plaintiff  may  bring  an  action  on  the 
special  contract ;  but  after  the  expiration  of  the  period  of 
credit,  indebitatus  assumpsit  Will  lie i.  13,  17 

an  agreement  to  transfer  the  absolute  property  in  goods  for  a  biU 

of  exchange  is  a  sale 1.  17 

bill  of  exchange  subject  of  sale  as  a  commodity i.  18 

same  remedy  for  non-delivery  in  payment  of  goods  sold,  as  for 

non-delivery  of  goods  to  be  given  for  other  goods       ...         i.  18 

negotiable  paper  fraudulently  obtained  from  lunatic,  held  void 

even  in  hands  of  innocent  third  party  without  notice      ...       i.  139 

drunkenness  good   plea  to   action  on  endorsement  made  with 

knowledge  of  holder  of  paper i.  117 

wife's  separate  estate  not  liable  on  note  signed  by  her  husband  as 

her  trustee,  without  clear  evidence  of  authority     .     .     .     .    i.  207,  217 

nor  where  he  signs  as  hei^  agent  without  proof  of  the  agency  .     .       i.  228 

in  Rhode  Island,  married  women  entitled  to  payment  out  of  her 

husband's  estate  of  his  note  held  by  her i.  229 

and  in  Maine,  he  may,  bona  fide,  convey  real  estate  to  her  in 

payment  of  note i.  229 

in  New  York,  married  women  can  make  negotiable  paper  ...       i.  230 

as  they  can  also  in  Indiana i.  232 

in  Indiana,  married  woman  estopped  from  repudiating  her  ad- 
mitted negotiable  paper  in  hands  of  innocent  party   ....       i.  234 

liable  on  her  promissory  note  for  wearing  apparel i.  237 

in  New  York,  she  is  estopped  fiom  repudiating  her  negotiable 
paper,  in  hands  of  innocent  party,  apparently  connected  with 
her  separate  business i.  238 

but  not  estopped  in  Indiana,  from  showing  that  she  has  signed 

notes  as  surety,  and  unconnected  with  her  separate  estate   .     .       i.  239 

not  liable  for  promissory  notes  given  by  her  in  commercial  trans- 
actions, under  acts  vesting  her  separate  estate  in  her,  but  not 
enabling  her  to  trade  as  feme  sole i.  239 

she  has  the /m.9  disponendi  in  Missouri  as  feme  so/e,  and  she  is 

bound  on  her  promissory  note  or  deed  of  trust  for  her  purchases       i.  240 

•where  power  to  trade  as  well  as  hold  separate  estate,  the  defence 
that  the  note  was  not  given  on  account  of  her  separate  estate  is 
insufficient .       i.  240 

wife  liable  for  family  expenses  in  some  of  the  States,  as  Iowa 
and  Oregon,  though  sale  made  to  husband  individually  for  his 
promissory  note i.  241 

fraudulent  drafts  on  owners  of  vessels  do  not  bind  vessel  or 
owners,  even  in  hands  of  innocent  holders  for  value,  though 
the  drafts  on  their  face  express  that  they  are  "recoverable 
against  vessel,  freight,  and  cargo" i.  246 

coupons  payable  to  bearer,  detached  from  bonds,  are  not  affected 

by  disabilities  of  holder  of  bonds i.  388 

where  negotiable  securities  are  payable  to  a  named  person  or 

bearer,  title  passes  by  delivery  and  without  endorsement     .    i.  388,  389 

municipal  bonds  and  coupons  issued  to  railroad  companies  are 

generally  negotiable i.  389 

where  coupon  not  made  payable  to  order  or  bearer,  but  "  on  this 

coupon,"  negotiable i.  389 


ANALYTICAL   INDEX.  697 

[References  are  to  both  text  and  notes.] 

BILL   OR   ^OTE  — (Continued). 

negotiable  paper,  as  bonds,  may  be  held  invalid  where  not  duly 
issued,  and  carry  notice  on  their  face  of  suspicious  circum- 
stances, such  as  unfilled  blanks,  over-due  coupons,  etc.     .     .  i.  396,  397 

but  blanks  may  be  sometimes  filled  up  by  holder  under  circum- 
stances implying  authority i.  397 

and  blanks  improperly  filled  sometimes  held  not  to  vitiate  nego- 
tiable paper  in  hands  of  innocent  third  parties i.  397 

but  even  in  hands  of  innocent  third  parties,  fraudulently  obtained 

negotiable  paper  held  void i.  397,  398 

as  to  when  alterations  do  and  when  they  do  not   vitiate     .     .    i.  399,  400 

parties  taking  negotiable  paper  with  evidence  of  7nala  fides  on 

face,  affected  by  the  fraud 1.  400 

but  bona  fide  holders  often  protected,  even  when  fraud  in  issuing 

negotiable  paper i.  401 

bona  fide  purchasers  of  improvidently  issued  railway  bonds  pro- 
tected      i.  405 

railway  certificates  for  stock,  though  assignable,  are  not  strictly 

negotiable  to  shut  out  prior  equities i.  406 

those  only  are  liable  ou  negotiable  paper  whose  names  appear 

on  it i.  573 

BILLS  OF  LADING.     (See  Ship-Masters.) 

ship-masters  fraudulently  signing  for  goods  not  received    .     .     .    ii.  1-74 
(See  Railway  Freight  Receipts.) 

shipper  has  a  lien  on  ship  under  bill  of  lading  of  charterer  as 

owner /»?-o  hdc  vice i.  291 

vendee's  dealing  with  bill  of  lading,  so  as  to  put  an  end  to  the 
stoppage  in  transitu,  equivalent  to  acceptance  and  actual  receipt 

to  satisfy  the  Statute  of  Frauds ii.  385 

BILLS  OF  LADING  ACT.     (See  Factors'  Acts.) 

Assignment  of  bill  of  lading  as  pledge  does  not  pass  "  the  prop- 
erty in  the  goods  "so  as  to  make  pledgee  liable  for  freight 
under  the  act i.  103 

under  the  act,  the  biU  of  lading  is  conclusive  against  the  party 

signing  it ii.  12 

affirmation  of  common  law ii.  43 

BILLS  OF  SALES  ACTS, 

in  England,  affect  assignments  by  husband  to  wife  for  her  sepa- 
rate use,  and  have  to  be  registered i.  207 

■when  change  of  title  of  chattels  without  change  of  possession, 

registration  is  required i.  207 

as  to  fixtures  under  these  acts ii.  242-247 

(See  Fixtures.) 
BOOK  ACCOUNT.     (See  Indebitatus  Assumpsit.) 
BOTTOMRY  BOND.     (See  Evidence;  Lien;  Ship-Masters.) 

where  bottomry  bonds  ai-e  executed  by  master  of  foreign  ship  for 
repairs  as  agent  of  necessity,  the  law  of  the  place  where  the 
ship  belongs  governs  the  owner's  liability i.  275 

fact  alone  of  master  being  owner  does  not  justify  implied  hy- 
pothecation      i.  280 

bottomry  bond  not  invalidated  by  transactions  between  owner 
and  mortgagee,  as  to  illegal  voyage;  lender  has  only  to  look  to 
facts  justifying  the  loan  from  ship's  necessities i.  28i 


698  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 
BOTTOMRY  BOl^D  —  ^Continued). 

suit  for  necessaries  not  sustainable  in  England  in  County  Court, 
where  furnished  on  bottomry  bond,  nor  in  Admiralty  where 

cause  transferred  from  County  Court i.  285 

bottomry  bond  not  sustainable  where  owner  can  be  reasonably 
communicated  with,  and  insolvency  of  owner  does  not  excuse, 

as  communication  may  then  be  with  his  assignee i.  28.5 

what  the  necessity  is  that  will  justify  hypothecation      ....       i.  286 
by  hypothecation  of  freight  only  unpaid  freight  can  be  recovered, 

not  that  which  was  paid  in  advance i.  286,  287 

necessary  expenditures  for  foreign  vessel  take  priority  even  over 

bottomry  bond  previously  given i.  288,  289 

what  are  necessaries  to  vessel  in  distress  to  sustain  bottomry 

bond i.  293 

BROKERS.     (See  Principal  and  Agent.) 

BURDEN  OF    PROOF.      (See   Evidence;   Married   Women; 

Presumption.) 
CARRIERS'   CONTRACTS.    (See  Railway  Contracts  ;  Rail- 
way Freight  Receipts.) 
bills  of  lading  signed  by  ship-master  or  freight  agent  for  goods 

not  received , ii-  1-74 

carriers'  contracts  for  through  carriage  of  goods ii.  75-215 

COMPANIES'  ACTS.     (See  English  Companies'  Acts.) 
CONDITIONAL   GIFT.     (See  Gift.) 

CONSIDERATION.      (See  Frauds,  Statute  of;   Note  or 
Memorandum.) 

what  is  a  legal i.  32 

when  none,  the  transaction  is  a  gift i.  33 

and,  when  by  parol,  when  not  a  trust,  gift  cannot  be  enforced 

where  remaining  executory i.  33 

where  total  failure  of,  money  had  and  received  lies  for  money  paid        i.  98 

lunatic's  contract  will  be  set  aside  for  want  of i.  Ii2 

contracts  of  parties  under  disabilities  usually  not  rescindable  for 
return  of  property  without  return  of  consideration.  (See  In- 
fant ;  Insanity) i.  146 

where  consideration  originally  beneficial,   subsequent  promise 

binding i.  241 

married  women's  promises. after  coverture  held  binding  for  con- 
sideration received  when  covert i.  241 

contract  to  pay  for  spurious  shares  of  stock,  being  without  con- 
sideration, cannot  be  enforced i.  391 

inadequacy  of  consideration  is  an  important  element  in  sales  be- 
tween parties  in  a  quasi  fiduciary  relation i.  455 

one's  own  promissory  note  in  part  payment  considered  sufficient 
to  take  the  case  out  of  the  Statute  of  Frauds  when  the  note  is 

the  consideration  agreed  on ii.  276 

consideration  in  negotiable  paper  is  implied ii.  276 

CONSIGNEES.     (See  Factor's  Acts;   Principal  and  Agent.) 

rights  as  between  ship  and  consignees  of  cargo i.  630,  631 

as  to  payment  of  freight i.  631 

where  goods  are  owned  by  shipper,  consignees  as  against  him  have 
only  the  right  to  receive  the  goods  at  place  indicated  there- 
for     i.  631,  632 


ANALYTICAL   INDEX.  699 

[References  are  to  both  text  and  notes.] 
CONSIGNEES—  (Con^muerf). 

where  the  shipper  is  an  agent  merely,  the  rule  is  otherwise     .     .       i.  632 
what  is  a  sufficient  delivery  of  the  goods  to  the  consignees       .    i.  632,  633 
contract  contemplates  a  transfer  into  their  power  and  possession, 
and  master's  neglect  of  his  duty  causing  confiscation  of  goods 

renders  ship  liable i.  633,  634 

remedy  of  consignee  against  ship  for  non-delivery  of  goods  .  .  1.  634 
and  liability  of  consignee  to  ship  for  not  removing  goods  ...  i.  634 
action  by  consignor  against  consignee  for  goods  sold,  suspended 

while  latter's  unmatured  acceptances  therefor  are  outstanding       i.  634 
■where  freight  not  paid  on  goods  on  being  duly  landed  and  sep- 
arated, after  notice  to  consignee  ship  may  store  them  and  re- 
tain lien  for  freight  and  charges 1.  635 

undertaking  of  consignees  to  third  parties  to  accept  drafts  for 
proceeds  of  shipment,  treated  as  equivalent  to  acceptance,  and 
held  liable  notwithstanding  payment  to  shippers    .     .     .     .    i.  635,  636 
CONTRACT.     (See  Action;  Disability;  Fraud;  Infants;   In- 
sanity ;   Married    Women  ;    Measure    of    Damages  ; 
Principal  and  Agent;  Sale.) 

sale  is  a,  and  contains  all  its  ingredients i.  6,  7 

intention  of  parties,  or  their  mutual  assent,  to  govern  in  construc- 
tion of i.  7 

price  agreed  on  in  contract  governs  even  though  the  action  be  in 

indebitatus  assumpsit i.  13 

ingredients  of  the  contract  of  sale i.  32 

parties  under  disability i.  109 

in  England,  infant's  contracts  for  goods  not  necessaries  void,  and 

cannot  be  ratified i.  110 

lunatic's  contract  set  aside  where  knowledge  of  insanity  in  other 

party  and  fraudulent  advantage.     (See  Insanity.)     ....       i.  138 
adjudication  of  insanity  fixes  legal  status  of  lunatic  as  to  incapa- 
city to  contract i.  138 

contract  with  person  of  weak  mind  will  sometimes  be  avoided  in 

equity i.  139 

but  not  where  made  with  innocent  party  unless  the  status  quo  can 

be  restored i.  139 

executed  contracts  between  lunatic  and  innocent  party  have  been 

frequently  sustained i.  139,  140 

contract  may  be  implied,  as  for  necessaries,  with  infant,  drunk- 
ard, or  lunatic,  although  no  agreeing  mind i.  143 

Parsons'  view  that  there  can  be  no  contract  in  such  case,  unsound  i.  143 
though  the  express  contracts  of  lunatic  may  be  avoided,  those 

implied  in  law,  as  for  wife's  necessaries,  cannot i.  143 

where  party  capable  of  attention  and  application,  weakness  of 

mind  and  forgetfulness  not  sufficient  to  invalidate  contract  .  i.  144 
as  to  contracts  by  drunkards.  (See  Drunkenness.)  .  .  .  i.  146-148 
married  women  at  common  law  incapable  of  making  contract  i.  149,  198 
aggregatio  mentium  not  required  in  implied  contracts  ....  i.  159 
at  common  law  there  can  be  no  valid  contract  between  husband 

and  wife i.  230 

but  by  many  of  the  Married  Women's  Acts  there  may  be  .      i.  229  et  seq. 

(See  Married  Women.) 
a  maritime  lien  does  not  arise  in  a  contract  to  build  a  ship,  nor 
in  contract  for  materials  therefor i.  287 


700  ANALYTICAL   INDEX. 

[References  are  both  to  text  and  notes.] 
CONTRACT  —  (Continued). 

competent,  within  limits  named,  for  the  States'  legislatures  to 

create  liens  under  such  contracts i.  287 

contract  of  a  corporation  in  violation  of  laws  of  a  State  will  not 

be  enforced  in  the  courts  of  the  State i.  301 

where  parties  contract  to  do  work  subject  to  approval  of  superin- 
tendent, sub-contractors  who  perform  their  contract,  are  not 
affected  by  his  disapproval i.  306 

corporation  contracts,  as  to  seal.     (See  Corporations.)     .     .    i.  317-321 

for  want  of  privity  of  contract,  holder  of  bond  has  no  action  in 
his  own  name  against  one  company  which  has  agreed  with  an- 
other company  to  pay  its  bonds i.  395 

charterer  of  ship  liable  on  his  contract  to  furnish  cargo  at  foreign 
port,  though  prevented  from  doing  so  by  accident,  disease,  or 
inevitable  necessity i.  634 

but  where  contract  rendered  unlawful  by  the  government  of  the 

home  port,  the  contract  is  dissolved i.  634 

CONTRACT   BY   LETTER.     (See  Allotment  of  Shares.) 
CONVERSION.     (See  Trover  ) 

CORPORATION.  (See  Directors;  English  Companies'  Acts; 
Estoppel  ;  Fraud  ;  Incorporated  Companies  in  the 
United  States  ;  jNIunicipal  Corporation  Transac- 
tions ;   Stockholders.) 

purchases  made  by,  cannot  be  impeached,  where  no  unfairness  or 

fraud,  by  those  who  at  the  time  were  majority  of  directors       .       i.  298 

contract  of  corporation  made  in  violation  of  law  of  a  State  will 

not  be  enforced  in  the  courts  of  the  State i.  301 

where  committee  of  management  of  company  contract  as  agents 
for  and  in  name  of  company,  and  latter  ratify,  and  con- 
tract executed  between  principals,  principals,  not  agents,  are 
liable i.  302 

where  corporation  prohibited  from  dealing  in  real  estate,  but  al- 
lowed to  make  loans  of  money  on  personal  security,  mortgage 
to  third  party  for  loan  sustained i.  302 

decision  doubtful,  though  sustained  by  other  cases i.  302 

old  doctrine  that  corporation  cannot  contract  without  seal  now 

broken  into i.  317 

now  bound  by  parol  executed  contracts  for  necessary  goods  and 

works i.  317 

distinction  sometimes  taken  between  executed  and  executory 

contracts i.  318 

but  generally  held  now  that  contracts  for  general  or  incidental 

pmposes  valid  though  by  parol i.  319,  320 

may  ratify  and  adopt  without  seal  unauthorized  acts  by  officer  of 

company i.  321 

where  action  lies  and  where  it  does  not  lie  against  company  for 

fraud  of  its  agents i.  338-340 

purchasers  of  property  promoting  the  formation  of  a  company  for 
its  management  occupy  a  fiduciary  relation,  and  must  make 
disclosure  of  facts  as  to  purchase i.  842 

where  shares  are  sold,  they  carry  with  them  the  dividends  de- 
clared after  the  purchase i.  343,  344 

usage  of  the  Stock  Exchange  binds  members  of  it     .     .     .     .    i.  344,  345 


ANALYTICAL   INDEX.    •  701 

[References  are  to  both  text  and  notes.] 
CORPORATION  —  {Continued). 

promoters  of  company  liable  to  return  secret  profits  made  by 
them,  under  collusive  circumstances,  even  without  rescission 
of  contract i-  368 

party  buying  bonds  of  foreign  corporation  takes  them  subject  to 

disabilities  attaching  to  them  at  the  home  of  the  corporation  .       i.  386 

not  legislation  impairing  obligation  of  contracts,  to  pass  acts  re- 
lating to  insolvent  companies  in  the  spirit  of  bankrupt  laws     .       i.  387 

powers  of  corporation  are  such  as  inferred  by  act  of  incorpora- 
tion and  necessary  implied  powers i.  390 

no  implied  power  to  change  prescribed  capital,  and  any  such  in- 
crease of  stock  void i.  391 

contract  to  pay  for  spurious  shares,  being  without  consideration, 

cannot  be  enforced i.  391 

acquiescence  gives  no  validity  to  issue  of  stock  beyond  limit  of 

corporation i.  391 

payment  of  calls  on  unauthorized  stock  not  set  off  in  bankruptcy 

for  calls  on  stock  authorized i.  391 

in  England,  held  that  agreement  between  company  and  stock- 
holders for  exemption  from  assessments  on  stock  valid  ...       i.  391 

but  contra,  in  this  country  as  regards  creditors i.  391 

when  company  neglects  to  make  call  the  court  may  make  it   .    i.  391,  392 

Statute  of  Limitations  only  runs  from  date  of  order  of  court  .     .       i.  392 

stock  sold  by  broker  to  president  of  bank,  not  authorized  to  buy 
stock,  seller  not  knowing  to  whom  sold,  and  without  fraud, 
passes  from  seller i.  392,  393 

stockholder  cannot  be  released  from  his  liability  to  pay  for  his 

stock,  as  the  stock  is  a  trust  for  creditors i.  427,  428 

COUPONS, 

remain  negotiable  though  detached  from  bonds,  and  being  pay- 
able to  bearer,  are  not  affected  by  disabilities  of  holder  of 
bonds i.  388 

so  are  negotiable,  though  not  made  payable  to  order  or  bearer, 

but  merely  "  on  this  coupon  " i.  389 

Statutes  of  Limitation  run  from  their  due  date     ......       i.  395 

CROSS-ACTION. 

right  to  bring i.  .584 

bad  case  on  the  subject  in  Supreme  Court  of  Canada     ....       i.  584 
CUSTOM    OR    USAGE.      (See  Corporation,  Principal   and 
Agent.) 

rules  governing i.  527,  528,  557-560 

DAMAGES.      (See  Measure  of  Damages.) 

DEAF   AND   DUMB.      (See  Idiots.) 

DECEIT.      (See  Fraud.) 

DEFINITIONS.      (See  Bailment  ;    Gift;   Trade.) 

of  sale  contradictory,  but  the  better  definitions  are  that  sales  and 

barter  or  exchange  are  in  legal  effect  the  same i.  1 

Blackstone,  Noy's  Maxims,  and  Chitty  on  Contracts  are  to  this 

effect,  —  quid  pro  quo  required i.  1 

Kent  also  defines  sale  as  transfer  of  property  for  valuable  con- 
sideration    i.  2 

by  civil  law,  in  time  of  Justinian,  money  consideration  was 
necessary i.  2 


702  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

DEFimTIO:^S—  (Continued). 

but  by  common  law  any  consideration  of  value  is  sufficient  to 

constitute  a  sale i.  2 

Blackburn  and  Campbell  agi-ee  with  this  view i.  2 

VV.  W.  Story  treats  the  consideration  for  a  sale  as  being  for  a 

price,  i.  e.,  in  money i.  3 

but  the  authorities  he  cites  do  not  sustain  him i.  3 

Parsons  defines  sale  as  an  exchange  for  money i.  3 

authority  (3  Salk.  157)  cited  for  this  does  not  sustain  it,  but 

shows  that  a  barter  is  really  two  sales i.  3 

Addison  has  same  view  as  Parsons,  but  the  civil  law  authority 
(Pothier)  he  cites  shows,  as  in  Salkeld,  that  an  exchange  or 

barter  is  really  two  sales i.  3 

other  authorities  show  that  barter  and  sale  are  in  effect  the  same    i.  4,  5, 16 
resulting  from  barter  being  two  sales,  all  the  ingredients  of  a  sale 

apply  to  each i.  4 

Benjamin's  definition  that  a  sale  is  for  a  price  in  money  paid  or 

promised  not  a  good  one i.  5 

the  common-law  authorities,  such  as  Noy's  Maxims,  and  Shep. 

Touch.,  do  not  sustain  him i.  5,  6 

Campbell's  definition,  and  those  of  Kent  and  Blackburn,  that  a 
sale  is  a  mutual  contract  for  the  transfer,  etc.,  for  a  considera- 
tion in  value,  less  open  to  criticism i.  6 

criticism  of  definition  of  sale  by  Bigelow,  C.  J i.  6 

stiictly  defining  a  sale  as  being  a  transfer  of  title  to  property  for 
money  would  exclude  from  sales  about  ninety  five  ^er  cent,  of 

all  the  usual  sales  made i.  8 

Bigelow,  J.,  considers  the  distinction  as  one  rather  of  shadow 

than  of  sub.stance i.  10,  11 

the  same  general  rules  of  law  are  equally  applicable  to  both   .     .         i.  10 
a  sale  imports  a  quid  pro  quo,  in  some  way  or  other,  enuring  to 

the  benefit  of  the  seller i.  11 

•where  there  is  an  agreed  price,  the  transaction  is  a  sale      ...         i.  13 
an  agreement  to  transfer  the  absolute  property  in  goods  for  a  bill 

of  exchange  is  a  sale i.  17 

price  is  the  equivalent  or  compensation,  in  whatever  form  re- 
ceived, for  property  sold i.  19 

definition  from  case  in  3  Salk.  157,  that  an  exchange  is  a  double 

sale,  sustained i.  19 

•where  goods  are  delivered  upon  a  contract  for  a  valuable  consid- 
eration, whether  in  money  or  money's  worth,  then  the  property 

passes  ;  it  is  a  sale  and  not  a  bailment i.  26,  27 

contract  defined i.  32 

gifts  defined.     (See  Gift.) i.  33 

Roper's  definition  of  gifts  mortis  causa  disapproved  by  Gibson, 

C.  J i-  36 

Gibson,  C.  J. 's  own  definition  not  perfect i.  37 

another  stated  as  better ,     .     .     .         i.  37 

definitions  of,  by  Bracton  and  Bacon i.  37 

by  Lord  Eldon,  and  by  Burns i.  40 

further  definitions,  by  Justinian,  Shaw,  C.  J.,  etc i.  42 

gifts  inter  luvos  may  be  either  absolute  or  conditional    ....         i.  47 
unsound  definition  of  gifts  inter  vivos  quoted i.  50 


ANALYTICAL   INDEX.  703 

[References  are  to  both  text  and  notes.] 
BEFimTlO^S  — (Continued). 

bailments  defined.     (See  Bailment.) i.  92 

definition  of  infant's  necessaries.     (See  Infant.) i.  110 

definitions  of  insanity  considered.     (See  Insanity.)     .     .     .     i.  136-138 

idiots,  as  defined  by  Coke  and  Bacon i.  145 

Coke's  definition  of  drunkenness i.  146 

definition  of  the  necessity  which  justifies  hypothecation     ...       i.  286 
DELIVERY.      (See  Actual  Receipt;    Earnest  or  Part  Pay- 
ment; Gift.) 
DIRECTORS  OF  COMPANIES.     (See  Incorporated  Companies 
in  the  United  States  ;   Stockholders.) 
the  law  will  i-elieve  against  their  transactions  in  their  own  behalf 

when  they  act  as  the  agents  of  others  as  such  directors  ...       i.  294 
they  cannot  as  agents  or  trustees  enter  into  contracts,  and  then 

participate  in  benefit  of  contracts  made  with  themselves      .     .       i.  294 
hence  arrangements  of  directors  to  organize  new  companies  to 
secure  undue  advantage  to  themselves  are  unlawful  devices, 

subject  to  being  set  aside i.  294,  295 

but  where  power  to  disaffirm  acts,  it  should  be  duly  acted  on,  or 

delay  may  amount  to  ratification 1.  295 

directors  have  extensive  powers  when  acting  legitimately  ...        i.  296 
but  cannot  operate  in  company's  bonds  or  in  purchase  of  com- 
pany's liabilities,  as  stockholders  may  do i.  296 

rights  of  both  creditors  and  stockholders  will  be  protected  against 

such  transactions 1.  296 

but  fair  transactions  by  president  or  directors  in  purchase  of 
company's  liabilities,  or  in  dealing  with  company,  have  been 

sustained i.  297 

directors  cannot  prefer  debts  due  them  by  insolvent  company      .       i.  297 
may  prefer  a  debt,  but  not  one  in  which  they  are  themselves 

interested i.  297 

directors  may  ratify  sale  of  stock  made  by  president  and  cashier 

to  themselves i.  297 

and,  on  such   ratification,  president  and  cashier  are  estopped 
from  denying  legality  of  sale,  or  claiming  that  it  was  mei-ely 

colorable  for  illegal  purpose i.  297 

directors,  as  agents  of  the  company,  are  responsible  to  it  for  of- 
ficial misconduct  and  fraud,  and  not  to  individual  stockholders 

by  action i.  297 

director  may  maintain  action  against  company  for  their  use  of 

his  patent,  without  agreement  with  him i.  298 

and  for  services  rendered  by  him  outside  of  his  duty  as  director        i.  298 
but  cannot  himself  act  as  director  in  fixing  value  thereof  ...       i.  298 
those  who  at  time  were  majority  of  directors  cannot  impeach  pur- 
chase by  corporation,  where  no  unfairness  or  fraud    ....       i.  298 
note  for  loan  by  one  of  the  directors  sustained,  where  the  other 

three  directors  voted  for  it,  and  no  fraud i.  298 

but  contract  with  director  held  invalid,  where  he  and  one  other 
director  only  voted  for  it,  there  being  thi'ee  directors;  validity 

must  be  established  outside  of  his  own  vote i.  298 

directors  are  trustees  of  the  stockholders,  the  relation  between 

them  being  that  of  trustees  and  ces/m's  que  trust i.  298 

only  liable  as  between  themselves  and  stockholders  where  guilty 
of  negligence  or  fraud i.  298 


704  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

DIRECTORS  OF   COMPANIES  — (Con/znuerf). 

purchases  by  directors,  as  trustees  of  stockholders,  may  be  set 

aside  at  will  of  beneficiaries i.  299 

and  sales  of  corporate  property  are  set  aside  where  directors  are 

interested  therein i.  299 

but  where  entirely  void  of  fraud,  directors' purchase  may  be  rati- 
fied by  stockholders i.  299 

majority  of  stockholders  can  ratify i.  299 

directors,  as  to  ratification,  quasi  trustees  only i.  299 

mistake  in  cases  which  hold  otherwise i.  299,  300 

directors,  in    heir  capacity  as  stockholders,  are  not  even  quasi 

trustees i.  300 

as  regards  necessary  good  faith  of  directors,  their  position  very 

much  that  of  trustees i.  300 

directors  held  not  liable  to  creditors  or  stockholders  for  deprecia- 
tion of  stock  from  misconduct i.  300 

contract  between  railway  company  and  construction  company  set 
aside,  some  of  the  directors  of  the  former  being  members  of 
the  latter i.  301 

directors'  duty  to  act  against  third  parties  in  protection  of  cor- 
poration rights i.  302 

individual  stockholder  cannot  so  act  unless  by  grossly  culpable 

conduct  of  directors  in  not  acting i.  302 

president's  purchase  from  directors  of  bond  of  company  for  full 

value  and  for  benefit  of  company,  sustained i.  303 

and  so  as  to  bond  and  mortgage  to  directors,  authorized  by  stock- 
holders, for  necessary  loan  to  company i.  303,  304 

purchase  of  stock  by  directors,  deposited  with  company  as  secur- 
ity, with  power  of  sale,  sustained,  depositor,  in  effect,  acquies- 
cing  i.  304 

purchase  by  director  of  corporation  property,  at  fair  and  open 
sale  and  for  reasonable  price,  under  mortgage  to  secure  debt 
to  him,  sustained i.  305 

even  where  sale  resulted  beneficially  to  purchasing  directors,  other 

stockholders  not  willing  to  advance  or  run  risk i.  306 

director  may  vote  as  stockholder,  aflirming  bona  fide  contract 
made  between  him  and  company,  and  such  contract  ratified  by 
stockholders  is  good,  —  P.  C.  of  Eng.  reversing  unanimous  but 
utterly  unsound  decision  of  S.  C  of  Can i.  306-30S 

fair  transactions  between  directors  and  company  often  sustained       i.  3U8 

they  are  bound  to  disregard  their  own  private  interests  in  dis- 
charging their  duty  to  the  company i.  308 

and  have  no  right  to  acquire  an  interest  adverse  to  their  duty     .       i.  308 

where  director  sells  his  property  to  company  without  disclosing 
his  ownership,  company,  on  obtaining  knowledge,  can  repu- 
diate the  contract,  but  if  they  elect  to  affirm  it,  they  can  do  so, 
and  cannot  recover  profit  made  by  the  director  on  the  sale  .    i.  308-310 

but  if  director  fail  to  disclose  his  interest,  the  company,  on  dis- 
covery, can  rescind  sale,  and  if  rescission  is  impossible,  they 
can  recover  secret  profit  made  by  him i.  310-312 

duties  and  liabilities  of  directors  in  issuing  a  prospectus      .     .    i.  312-315 

they  must  equally  avoid  the  snppressio  veri  and  the  sugr/estinfcJsi, 
and  the  injury  must  be  the  direct  result  of  representation  in- 
tended to  be  acted  on i.  31G 


ANALYTICAL   INDEX.  705 

[References  are  to  both  text  and  notes.] 

DIRECTORS   OF   COMPANIES— (Con^mwed). 

directors'  imprudence  will  not  make  them  personally  liable,  un- 
less amounting  to  c?•a^•sa  ne<//t^e«/«a      i.  8K» 

particularly  when  acts  they  are  authorized  to  do  are  imprudent  .       i.  ;jl7 

but  they  have  been  held  liable  when  buying  shares  of  their  own 
company  for  speculative  purposes  against  prohibition  in  the 
company's  articles  of  association i.  317 

directors  acting  as  a  board  and  as  agents  of  the  company  fully 
considered.  (See  Incorpouated  Companies  in  the  United 
States.) i.  375-379 

directors  of  bank  held  liable  as  trustees  for  bank  for  profits  on 

the  bank's  shares  sold  by  the  directors i.  462 

DISABILITY  TO  CONTRACT.  (See  Drunkards;  Fiduciary 
Relations;  Guardians;  Infants;  Lunatics;  Married 
Women;  Trustees.) 

parties  under,  affecting  their  contracts i.  109 

DIVIDENDS.     (See  Corporation.) 
DONATIO   MORTIS   CAUSA.     (See  Gifts.) 
DRUNKENNESS. 

definition  of,  by  Coke i.  146 

drunkenness,  aggi'avation  as  to  criminal  act i.  146 

but  one  drunk,  contracting  with  another    taking  advantage  of 

this,  contract  will  not  be  enforced i.  146 

total  drunkenness  a  defence  to  action  on  contract       .....       i.  146 

drunkard  liable  for  necessaries i.  146 

contract  voidable  and  not  void,  and  therefore  can  be  ratified  by 

him i.  146 

drunkenness  good  plea  to   action   on   endorsement  made  with 

knowledge  of  holder  of  negotiable  paper i.  147 

courts  of  equity  grant  relief  against  contracts  by  drunkards  on 

ground  of  fraud i.  147 

drunkenness,  to  cause  contract  to  be  avoided,  must  be  such  as  to 

cause  deprivation  of  reason i.  148 

EARNEST  OR  PART  PAYMENT.  (See  Barter.) 

in  an  exchange  of  a  chattel  and  money  for  another  chattel,  the 
delivery  of  the  one  chattel  as  earnest  or  part  payment  takes 
the  case  out  of  the  statute ii.  268 

and  as  exchanges  of  chattels  ai-e  within  the  statute,  the  payment 

of  earnest  will  take  the  ca.se  out  of  the  statute ii.  272 

goods  as  well  as  money  may  be  given  in  earnest  or  part  payment 

to  bind  the  bargain ii.  27.") 

giving  "  something  "  implies  this ii.  275 

the  merest  trifle  has  been  held  sufficient,  as  a  shilling  or  a  half- 
penny     ii.  275 

but  it  is  not  sufficient  for  the  vendor's  servant  to  draw  a  shilling 
*  .  . 

across  the  vendee's  hand  and  return  it  to  his  own  pocket     . 

this  not  good  either  by  custom  or  under  the  statute 

the  act  of  giving  must  be  by  the  vendee 

use  of  sacks  for  sacking  corn  held  sufficient 

anything  of  value  agreed  on  as  payment  will  be  deemed  sufficient 

payment  in  articles  of  property  often  held  good ii.  275,  276 

giving  valuable  information  has  been  held  as  good  as  a  cash 

payment ii.  276 

VOL.  II.  45 


1.  27.) 
1.  275 
i.  275 
i.  275 
i.  275 


706  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

EARNEST   OR   PART    PAYMENT  — (Con^mued). 

one's  own  promissory  note  considered  sufficient  where  that  is  tlie 

consideration  agreed  on ii.  276 

under  the  New  York  statute  "  things  in  action  "  being  subjects 

of  sale,  their  delivery  should  take  the  case  out  of  the  statute    .      ii.  276 

doubted  in  Indiana  case  if  one's  own  note  is  sufficient  payment 
under  the  statute,  but  doubt  considered  not  well  founded    .     .      ii.  276 

paying  money  does  not  take  the  sale  of  land  out  of  the  statute, 

and  the  money  is  recoverable  back  again ii.  276 

giving  a  promissory  note  on  a  gambling  contract  does  not  legalize 

an  invalid  contract ii.  276,  277 

but  it  is  good  as  a  conditional  payment  even  where,  as  in  New 
York,  the  payment  has  to  be  made  "  at  the  time  "  of  the  mak- 
ing of  the  contract ii.  277 

how  far  a  bill  or  note  is  payment,  absolute  or  conditional       .   ii.  277,  279 

shown  that  the  payment  of  one's  own  promissory  note  or  that 

of  another  satisfies  the  statute ii.  279 

payment  of  a  prior  debt  due  is  not  a  payment  on  a  new  sale  to 

take  it  out  of  the  statute ii.  279 

return  of  duties  part  of  price,  and  the  delivery  of  the  goods  takes 

the  case  out  of  the  statute ii.  279, 280 

Benjamin's  distinction  between  earnest  and  part  payment  in- 
tangible      ii.  276-280 

the  earnest-money  given  is  a  part  payment ii.  280 

where  a  sum  for  forfeiture  only  is  not  part  payment,  it  is  there- 
fore not  earnest,  as  earnest  is  part  payment ii.  280 

usually  under  the  old  English  practice,  prior  to  the  statute,  that 
which  was  given  a',  the  time  of  sale  was  called  earnest,  but  it 
was  a  part  payment,  and  is  deductible  from  the  gross  amount 
of  the  purchase-money ii.  280,  281 

earnest  and  part  payment  considered  the  same  before  the  statute      ii.  281 

the  civil    law,   from   which    it   was   derived,   was   to   the   same 

effect ii.  282 

the  old  common-law  writers  sustain  the  same  doctrine  .     .     .    ii.  282, 283 

the  statute  is  little  more  than  an  affirmance  of  the  common  law  .      ii.  283 

but  some  of  the  peculiar  features  connected  with  it,  as  in  the 

civil  law,  were,  at  common  law,  attached  to  it ii.  283,  284 

Blackstone  treats  delivery  of  part  of  goods  as  earnest,  as  he  treats 

part  payment  as  earnest ii.  281 

the  giving  of  earnest  or  part  payment  may  be  at  the  time  of  sale, 
or  at  any  reasonable  time  thereafter,  the  decisions  as  to  de- 
livery of  goods  as  earnest  being  equally  applicable  to  their 
part  payment ii.  284,  285 

part  payment  relates  back  to  the  time  of  the  making  of  the  con- 
tract, and  establishes  it ii.  285 

but  it  must  be  before  action  brought,  or  the  express  words  of  the 

statute  are  contravened ii.  285,  286 

cases  named  under  analogous  clauses  in  the  section  where  part 

performance  held  sufficient ii.  286,  289 

the  New  York  statute  renders  necessary  the  part  payment  "  at 

the  time  "  of  making  the  contract ii.  286,  287 

under  this  act,  held  that  acceptance  and  receipt  of  the  goods  at  a 

subsequent  time  is  sufficient ii.  286,  289 


ANALYTICAL    INDEX.  707 

[References  are  to  both  text  and  notes.] 

EARNEST   OR   PART   FAYME^T— (Continued). 

the  Massachusetts  court  in  effect  held  that  even  under  the  New 
York  statute  a  part-payment  was  sufficient,  as  only  then  there 
was  a  contract  to  take  effect ii.  289,  290 

their  decision  considered  unsound ii.  290 

corrected  in  New  York  case,  except  when  at  the  time  of  the  pay- 
ment the  contract  is  re-raade ii.  290 

held  there  that  subsequent  payment  of  itself  does  not  take  the 

case  out  of  the  statute ii.  290,  291 

but  the  New  York  Court  of  Appeals  in  so  holding,  intimate  in 
effect  that  it  is  plausible  that  a  payment  at  any  time  is  suffi- 
cient      ii.  292,293 

this  questioned,  and  not  relied  on  in  the  decision      .     .     .     .    ii.  293,  294 

another  New  York  case  holds  expressly,  with  the  Massachusetts 
court,  and  in  direct  contravention  of  the  statute,  that  "  the 
subsequent  payment  "  is  a  payment  "  at  the  time  "     .     .     .    ii.  294,295 

but  this  untenable  decision  subsequently  reversed       .     .     .     .    ii.  295,  296 

and  where  all  the  terms  and  conditions  of  the  contract  are  fully 
understood  and  agreed  on  at  the  time  of  the  payment,  then  the 
statute  is  satisfied ii.  296 

where  this  was  wanting,  the  part  payment  was  held  insufficient  ii.  296,  297 

but  where  this  is  done,  a  payment  by  check  is  sufficient     ...      ii.  298 

there  must  be  sufficient  to  show  a  contract  made  at  the  time  of 

payment ii.  298,  299 

Wisconsin  decisions  under  similar  act  the  same  as  the  latest  New 

York  decisions ii.  299-301 

later  Wisconsin  statute  seems  to  have  repealed  their  Statute  of 
Frauds,  and  this  was  in  effect  conceded  there,  but  held  other- 
wise in  a  later  case ii.  301 

but  under  a  fair  construction  of  the  act  it  seems  to  have  that 
effect ii.  301,  302 

under  the  usual  statutes  a  contract  invalid  when  made  for  want 
of  part  payment  is  made  good  on  a  subsequent  part  payment, 
on  receipt  of  part  of  the  goods ii.  302 

where  a  variety  of  articles  are  purchased  at  different  times,  and 
a  subsequent  payment  is  made  on  the  whole  as  an  entire  con- 
tract, the  contract  is  taken  out  of  the  statute  as  to  the  unde- 
livered part  of  the  goods ii.  302,  303 

where  goods  are  sold  at  different  prices  so  as  to  be  but  one  con- 
tract, the  subsequent  payment  of  the  price  of  some  of  the  goods 
renders  the  whole  contract  good ii.  303 

but  there  must  be  an  actual  payment ;  if  in  goods,  they  must  be 
delivered;  if  a  claim  against  the  vendor,  it  must  be  extin- 
guished, —  not  left  in  fieri ii.  303 

part  payment  in  goods  is  good  both  under  the  Statute  of  Frauds 

and  the  Statute  of  Limitations ii.  301 

but  as  the  payment  must  be  in  cash,  or  an  equivalent,  an  agree- 
ment to  exchange  claims,  without  cancelling  them,  is  insuffi- 
cient      ii.  304 

anything  delivered  and  accepted  as  a  payment  of  a  debt  is  suffi- 
cient      ii.  304 

a  payment  by  the  vendee  of  the  vendor's  debt  is  a  good  payment     ii.  304 

but  not  a  mere  promise  to  pay  it ii.  304 


708  ANALYTICAL    INDEX. 

[References  are  to  both  text  and  notes.] 

EARNEST   OR   PART   PAY'SlE^sT  —  (Continued). 

nor  an  agreement  to  credit  an  amount  due  the  vendee  unless  it 

be  credited  in  some  manner ii.  304 

where  personal  property  is  mortgaged,  and  subsequently  bought 
by  the  mortgagee,  an  agreement  to  credit  the  price  on  the  mort- 
gage is  not  a  payment ii.  305 

except  under  such  statutes  as  those  of  New  York  and  Wisconsin, 
the  subsequent  crediting  of  an  indebtedness  takes  the  case  out 
of  the  statute ii.  30.> 

but  not  under  these  statutes,  except  where  the  subsequent  time 

is  virtually  at  the  time  of  the  contract ii.  305,  306 

under  such  statutes,  there  must  be  some  act  of  payment  of  a  con- 
clusive character  at  the  time  of  the  contract ii.  306 

where  the  extiTiguishment  of  a  debt  to  the  vendee  is  the  payment, 

a  memorandum  in  a  memorandum  book  is  not  enough   .     .  ii.  806,  307 

an  agreement  that  the  vendor's  indebtedness  is  to  be  a  part  pay- 
ment does  not  satisfy  the  statute ii.  307,  308 

there  mast  be  the  proof  of  payment  and  not  of  an  agreement  to 

pay ii.  303 

but  where  an  amount  due  the  vendee  was  treated  as  a  present 

payment,  extinguishing  the  debt,  it  was  held  sufficient  ...      ii.  308 

though  not  on  a  mere  agreement  that  a  prior  indebtedness  should 

be  allowed,  where  this  was  not  treated  as  an  actual  payment  .      ii.  308 

an  agreement  in  writing  that  an  amount  shall  be  credited  is  not 

a  payment  until  actually  credited ii.  308 

where  no  receipt  given  nor  entry  of  credit  the  statute  is  not  satis- 
fied   ii.  309 

note  payable  in  goods  held  sufficient,  although  not  given  until  after 

the  goods  bought  were  destroyed  by  fire ii.  309 

the  act  of  payment  must  be  mutual,  but  may  be  made  to  an  agent 

as  in  other  contracts ii.  309 

and  the  agent's  authority  may  be  shown  as  in  other  cases  ...      ii.  309 

where  a  contract  was  to  depend  on  the  election  of  the  vendee,  on 
his  making  a  deposit,  his  subsequent  making  the  deposit  agreed 
upon  was  held  to  take  tiie  case  out  of  the  New  York  statute  ii.  309,  310 

payment  for  a  specific  part  delivered  takes  the  case  out  of  the 

statute  as  to  the  residue ii.  310 

as  the  payment  and  receipt  of  the  money  must  be  mutual,  money 
unauthorized,  sent  through  the  post  office,  may  be  rejected 
by  the  vendor,  and  the  case  will  not  be  taken  out  of  the 
statute  .     .     - ii.  310,  311 

where  the  payment  has  not  been  made,  tlie  vendor  may  subse- 
quently refuse  to  receive  it    ii.  310,  311 

earnest  does  not  necessarily  transfer  the  title  to  the  property  in 

the  goods  purchased ii.  311 

if  the  balance  is  payable  on  delivery,  trover  will  not  lie  until  the 
balance  is  tendered  or  paid,  the  vendor's  lien  for  the  unpaid 
price  continuing ii.  311 

where  there  is  no  agreement  giving  credit,  although  earnest  has 
been  paid,  the  bargain  is  bound,  but  a  demand  of  the  goods  with- 
out tender  of  the  price  is  void       ii.  312 

where  the  contract  can  be  rescinded,  and  where  not,  aft«r  earnest 
paid,  and  as  to  the  vendor's  rights ii.  312-314 


ANALYTICAL   INDEX.  709 

[References  are  to  both  text  and  notes  ] 

EARNEST   OR   PART   PAYMENT  —  (Continued). 

earnest,  being  part  payment,  is  to  be  appropriated  to  the  price, 

and  on  mutual  rescission  of  the  contract  is  recoverable  back    .      ii.  314 

but  where  the  money  is  paid  not  as  earnest,  but  as  a  forfeiture, 

it  is  not  recoverable  back ii-  314,  315 

oral  contract,  taken  out  of  the  statute  by  payment  of  earnest,  may 

be  varied  by  parol ii.  315,  316 

ELECTION.     (See  Principal  and  Agent.) 
EMBLEMENTS.     (See  Fixtures.) 

the  law  as  to ii.  230,  231 

ENGLISH  COMPANIES'  ACTS.     (See  Allotment  of  Shares; 
Laches  ) 

the  requirement  that  shares  of  stock  must  be  paid  for  in  cash  is 

satisfied  by  payment  in  goods  required  by  the  company       .     .     i.  9,  10 

but  it  has  been  held  that  purchases  of  property  payable  in  shares 

were  not  payment  in  cash .         i.  10 

but  shares  were  allowed  to  be  issued  after  the  registration  of  the 

contracts i-  10 

infant  selling  part  of  stock  after  coming  of  age  and  allowing  his 
name  to  be  placed  on  list  of  contributors,  affirms  transaction, 
and  is  liable  for  his  unsold  stock i.  127 

but,  under  131st  section  of  the  Act  the  official  liquidator  may  re- 
fuse to  accept  him,  as  there  must  be  a  transferee  liable  on  the 
register i.  127 

but,  even  in  these  cases,  w'hen  the  infant  acquiesces  in  the  con- 
tract after  coming  of  age,  and  the  company  accept  him,  as  it  is 
a  new  contract  he  is  bound .       i.  128 

where  shares  are  bought  by  an  adult  and  registered  in  the  name 

of  an  infant,  the  adult  is  bound i.  129 

■where  action  brought  in  name  of  infant  to  set  aside  purchase  of 
shares  on  ground  of  fraud,  and  compromised,  as  infancy  was 
not  involved  in  the  case,  infant's  beneficiary  may  take  benefit 
of  compromise  without  liability  to  other  party i.  130,  131 

infant  trustee  allowing  his  name  to  be  used  in  proceedings  against 
his  principal  is  not  a  retractation  of  a  previous  repudiation  of 
liability  for  shares  registered  by  principal  in  name  of  infant    .       i.  131 

■where  one  purchases  stock  and  registers  it  in  the  name  of  an  in- 
fant, the  purchaser  is  himself  liable  as  the  shareholder  under 
the  Act i.  1.32 

even  though  the  purchaser  be  an  agent i.  132 

the  Act  gives  a  remedy  against  director  selling  his  own  property 

to  company  without  disclosure i.  311 

a  company  can  only  act  in  transactions  within  its  memorandum 

of  association i.  .321 

cannot  by  its  articles  of  association  extend  its  power      ....       i.  321 

nor  ratify  acts  not  within  scope  of  the  memorandum      ....       i.  321 

the  company  cannot  buy  its  own  shares  where  no  such  authority 

in  the  memorandum,  though  in  the  articles i.  321 

on  sale  of  shares,  name  of  one  capable  of  contracting  must  be 

given  as  purchaser i.  322 

therefore,  where  no  fraud,  name  of  indigent  person  good,  when 

not  duly  objected  to i.  322 

name  of  fictitious  person,  or  of  one  under  disability,  as  infant  or 

married  woman,  not  good i.  323,  347 


710  ANALYTICAL   INDEX. 

[References  are  to  both  text  aad  notes.] 

ENGLISH    COMPANIES'    ACTS  — (Continued). 

nature  of  jobber's  contract  and  liability i.  323 

■where  fraud  in  prospectus  of  company,  and  purchase  of  stock 
therefore  voidable,  name  of  purchaser  ordered  removed  on 
proceedings  taken  prior  to  petition  for  winding  up  company    i.  324,  325 

false  statements  in  prospectus  to  deceive,  or  suppression  of  im- 
portant facts,  are  fraudulent,  and  entitle  purchaser  to  relief     i.  325,  326 

principles  governing  action  to  set  aside  fraudulent  contract     .    i.  326,  327 

fraudulent  transfer  of  another's  stock  to  innocent  third  party  set 

aside,  owner  not  having  been  guilty  of  laches i.  327,  328 

but  where  party  through  fraud  purchases  stock,  he  is  not,  as 
against  creditors,  entitled  to  relief,  on  application  after  pro- 
ceeding taken  to  wind  up  company i.  328-330 

principles  by  which  matter  is  then  governed i.  328-330 

where  fraudulent  representations  of  directors,  purchasers  of  stock 

can  rescind  contract,  where  restitutio  in  integrum  can  be  made     i.  331-339 

but  where  the  action  is  for  damages  for  deceit,  directors  have 

been  held  personally  liable i.  333,  334 

where  company  has  committed  fraud  as  to  statement  of  capital 
paid,  innocent  purchasers  of  stock  are  not  liable  to  make  con- 
tribution therefor,  but  are  liable  only  to  extent  of  their 
contract i,  334,  335 

shareholders  cannot  avoid  their  liability  for  stock  under  memo- 
randum by  inserting  in  the  articles  their  exemption  from 
payment i.  346,  347 

where  restitutio  in  integrum  necessary,  and  cannot  be  made,  action 

does  not  lie  against  liquidator  for  damages i.  337-339 

where  action  can  and  where  it  caunot  be  maintained  against 

company  for  fraud i,  338,  340 

where  transfer  not  registered,  purchaser  liable  to  indemnify  sel- 
ler, though  taking  transfer  in  name  of  third  party      ....       i.  348 

to  make  infant  affirm  purchase  of  stock,  there  must  be  a  di.stinct 

act  by  him  after  coming  of  age i.  348 

liquidator  may  refuse   to  retain  infant's   name   even  with   his 

consent ~ i.  348 

unless  where  there  have  been  laches  on  the  part  of  the  company        i.  349 

the  purchaser  of  shares,  when  not  getting  the  transfer  regis- 
tered, must  indemnify  seller i.  349 

but  transferor  of  shares  lemains  liable  to  the  liquidator  where 

no  transfer  to  competent  person  registered i.  349 

where  infant,  after  attaining  majority,  tacitly  allowed  her  name 
to  remain  on  list,  her  subsequent  application  to  have  it  re- 
moved was  allowed,  but  without  costs i.  350 

where  a  right  exists  to  resist  a  call  by  one  on  the  register,  it 

should  be  properly  exercised i.  350 

as  to  registry  and  non-registry  of  transfers i.  351 

where  shares  allotted,  notice  thereof  must  be  communicated  to 

the  allottee.     (See,  as  to  this,  Allotment  of  Shares.)    .    i.  352-354 

sale  by  one  member  of  Stock  Exchange  and  purchase  by  another 

may  be  made  one  contract i.  354 

an  assent  to  transfer  of  shares  may  be  implied  from  facts  ...       i.  354 

party  duly  registered  as  purchaser  of  shares  liable  as  contributor, 
though  arranging  otherwise i.  355 


ANALYTICAL   INDEX.  711 

[References  are  to  both  text  and  notes."] 

ENGLISH    COMPANIES'  ACTS  — {Continued). 

but  where  a  party  subscribes  the  articles  of  association  for  shares, 

he  becomes  liable  therefore  without  allotment i.  366 

by  signing  tlie  articles,  he  contracts  to  take  the  shares  ,     .     .     .       i.  367 

where  party,  who  might,  for  fraud,  rescind  contract  for  shares, 
after  discovery  of  fraud  acts  as  shax'eholder,  he  affirms  con- 
tract, and  cannot  rescind i.  367 

where  director's  name  forged  and  seal  affixed  to  certificate  by 
secretary  without  authority,  company  held  estopped  by  act 
of  the  secretary i.  36S 

company  affected  by  fraud  of  its  secretary  committed  within  scope 

of  his  employment i.  368,  369 

where  party  defrauded  by  company's  agent,  to  which  his  own 
negligence  aided,  though  transaction  may  be  cancelled  he  will 
not  get  costs i.  369 

where  shares  are  transferred  and  registered,  a  new  contract  is 
created  between  the  company  and  transferee,  discharging  con- 
tract with  original  shareholder i.  3.69 

jobber's  liability  on  sale  of  shares  ceases,  where  money  is  paid  to 

vendor  and  names  of  transferees  furnished i.  371 

■where  transferee  does  not  register  transfer,  he  is  liable  to  indem- 
nify vendor  for  subsequent  calls i.  371,  372 

if  grounds  exist  for  setting  aside  transfer,  unless  vendee  promptly 

repudiate  it  he  will  be  concluded i.  372 

but  where  a  jobber  sells  stock  with  registration  guaranteed,  he  is 
*  liable  to  vendor  on  his  special  contract i.  372 

an  infant  was  held  to  be  a  contributory,  for  laches,  after  coming  of 

age  in  not  repudiating  stock i.  373 

where  question  is  between  company  and  shareholder  for  calls, 
fraud  in  former  and  prompt  repudiation  of   shares  is   good 

defence i.  373 

EQUITY.      (See  Action;   Married  Womex.) 

proceedings  against  wife  for  necessaries  to  her  must  be  in  equity, 

and  affect  her  separate  estate  i.  193 

party  supplying  deserted  wife  with  money  for  necessaries  has 

remedy  in  equity,  but  not  in  law i.  195 

has  jurisdiction  in  matters  relating  to  separate  estates  of  married 

women        i.  196-200 

acts  through  medium  of  trusts i.  201 

and  treats  women  having  separate  estates  as  in  effect  femes 
sole i.  201 

married  women's  property  acts  confirm  equity  principles  pre- 
viously in  force  relating  to  their  separate  property      ....       i.  213 

in  equity,  independent  of  those  acts,  married  woman  may,  by 
permission  of  husband,  carry  on  business  for  her  own  separate 
use  and  benefit i.  213. 

equity  will  interfere  to  protect  single  stockholder  of  corporation 

against  acts  outside  of  powers i.  300 

■will  enforce  contract  according  to  usages  of  Stock  Exchange  .     .       i.  345 

■will  indemnify  agent  against  liability  and  loss  incurred  on  behalf 

of  principal i.  316 

■will  grant  the  necessary  relief  where  seal  of  municipality  has  been 

accidentally  omitted  from  bonds i.  421,  422 


712  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

ESTOPPEL. 

deed  of  married  woman's  separate  estate  binds  her  by,  us  feme  sole      i.  205 

Statute  of  Limitations  not  bar  as  to  her  separate  estate  for  money 
to  her  for  necessaries i.  205 

•where  fraudulent  representations  made  by  company  to  husband 
as  agent  for  wife,  on  bill  filed  to  set  aside  sale  of  stock,  she  not 
estopped  by  acts  of  husband  in  expending  the  money  while  in 
subsequent  employment  of  company i.  227 

wife  held  estopped  from  claiming  not  to  be  a  partner  with  hus- 
band while  in  appearance  holding  herself  out  as  such      ...       i.  228 

but  not  estopped  from  asserting  the  fact  that  her  husband  was 

her  debtor i.  228 

in  Indiana,  by  statute,  her  representations  acted  on  bind  her  as 

estoppels  in  pais,  where  her  denial  would  operate  as  fraud  .     .       i.  234: 

but  where  representation  obtained  from  her  by  one  in  collusion 

with  her  husband,  she  is  not  estopped i.  234 

except  as  to  negotiable  paper  she  has  admitted  hers,  in  the  hands 

of  innocent  third  party i.  234 

married  woman  paying  instalments  on  stock  purchases  after  dis- 
ability removed  cannot  recover  for  payments  made  during  her 
disability i.  237 

in  New  York  she  is  estopped  from  repudiating  her  negotiable 
paper,  apparently  connected  with  her  separate  business,  in 
hands  of  innocent  third  party i.  238 

but  not  estopped  in  Indiana  from  showing  that  she  has  signed 

notes  as  surety  and  unconnected  with  her  separate  estate     .     .       i.  239 

estopped  in  Alabama  from  denying  existence  of  firm  in  whose 

name  she  obtained  credit i.  2-58 

but  not  estopped,  under  acts  vesting  her  separate  estate  in  her, 
but  not  enabling  her  to  trade  as  feme  sole,  from  repudiating 
commercial  contiacts i.  239 

by  abandonment  of  ship,  as  between  insured  and  insurers,  owner 
not  estopped  from  claiming  that  sale  of  ship  by  master  was 
without  authority i.  265-270 

ratification  of  acts  of  directors  by  stockholders  estop  them  from 

setting  aside  such  acts  as  being  in  excess  of  directors'  authority      i.  296 

when  directors  of  company  ratify  sale  of  stock  made  by  president 
and  cashier  to  themselves,  latter  are  estopped  from  claiming 
illegality  of  transaction i.  297 

stockholder  knowingly  purchasing  stock  illegally  issued,  and 
voting  for  directors,  is  estopped  from  denying  validity  of 
election i.  297 

parties  entering  into   a  contract   which  is   duly  executed   are 

estopped  from  denying  their  power  to  contract i.  302 

•where  fraudulent  certificate  of  shares  issued  by  secretary  •without 

authority,  company  held  estopped i.  368 

stockholder  is   estopped  as  to  creditors  from  denying  liability 

while  continuing  registered  as  stockholder i.  379 

after  stockholders  have  accepted  stock  and  received  dividends 
for  years,  they  are  estopped  from  denying  validity  of  the  trans- 
action     i.  389 

where   corporation    has    power   to   issue,  stockholders   may   be 

estopped  from  setting  up  informalities  in  issue i.  391 


ANALYTICAL   INDEX.  713 

[Ileferuuces  are  to  both  text  aud  notes.] 

ESTOPVEL  —  (Continued). 

one  taking  stock  as  security  or  pledge  is  estopped  by  transfer 

from  denying  his  liability i.  39G 

stockholders  may  be  estopped  by  their  own  acts  from  denying 

validity  of  bonds  guaranteed  by  the  corporation i.  406 

as  to  extent  to  which  voters  in  New  England  towns  can  bind 

municipality  by  estoppel i.  409,  410 

see  Municipal  Corpokation  Transactions,  as  to  Estoppel 

by  recitals,  etc.,  in  municipal  bonds,  and i.  406-443 

party  may  make  himself  liable,  by  estoppel,  as  partner,  by  hold- 
ing himself  out  as  such i.  480 

parties  signing  a  contract  as  "  brokers  "  may  be  estopped  by  their 

language  in  the  contract  from  denying  that  they  are  principals       1.  542 

one  in  contract  declaring  himself  an  agent  does  not  estop  the 
other  from  showing  by  custom  or  by  fact  that  the  alleged  agent 
■was  a  principal i  569 

estoppel  estops  the  one  making  it,  not  the  one  to  whom  it  is 

made i.  570 

where  corporation  is  estopped  by  acts  of  its  officers  .     .     .     .    i.  600,  601 

shipowners  are  not  estopped  from  showing,  as  against  innocent 
indorsees  for  value,  that  statements  made  by  master  in  bills  of 

lading,  in  excess  of  authority,  are  untrue ii.  13,  14 

(See  Railway  Freight  Receipts.) 
EVIDENCE.     (See  Married  Women;  Necessaries.) 

infancy  may  be  given  in  evidence  in  an  action  of  trover  upon  plea 

of  not  guilty,  not  as  a  bar  but  to  show  nature  of  act  ....       i.  133 
(See  Infant.) 

as  to  evidence  in  actions  ex  delicto i.  133-135 

evidence  of  insanity i.  137,  138 

when  insanity  once  established,  burden  as  to  lucid  interval  is  on 

party  claiming  through  lunatic.     (See  Insanity.)     .     .     .  i.    138,  144 

status  fixed  by  adjudication  of  insanity i.  138 

where  no  evidence  of  fraud,  and  no  knowledge  of  insanity,  fair 

contracts  with  lunatics  protected i.  138 

but  where  knowledge  of  insanity  exists,  evidence  of  fraudulent 

advantage  is  receivable i.  138 

evidence  of  general  reputation  of  insanity  inadmissible.     ...       i.  141 

rules  in  equity  and  law  the  same i.  141 

as  to  evidence  of  insanity i.  141 

■where  consideration  for  livnatic's  contract  inadequate,  slight  evi- 
dence will  establish  imposition i.  142 

proof  allowed  in  equity  of  money  supplied  ■wife  of  lunatic,  and 

used  for  necessaries,  though  having  separate  income  .....       i.  143 

evidence  of  lucid  interval  must  show  restoration  of  mind  suffi- 
cient for  judgment  of  act i.  144 

deaf  and  dumb  persons  are  competent  witnesses  where  having 
proper  sense,  and  where  they  can  be  communicated  by  writing 
or  signs 1.  146 

of  finding  of  jury  in  divorce  court  of  wife's  adultery,  where  divorce 

not  granted,  does  not  alter  status  of  parties i.  194 

but  fact  of  adultery  may  be  proved  as  defence  in  action  against 

husband  for  wife's  necessaries i.  192,  194 

as  to  a  married  woman's  ownership  of  her  separate  personalty     .       i.  218 


714  ANALYTICAL  INDEX. 

[Refereuces  are  to  both  text  and  notes] 

EVIDENCE  —  (Continued). 

in  absence  of  evidence  of  property  purchased  by  wife  by  her 

separate  funds,  presumption  is  otherwise i.  220 

(See  Presumption.) 

to  make  husband  trustee  of  wife,  clear  evidence  required  ...       i.  225 

without  proof  of  agency  wife  not  liable  where  husband  signs  her 

name  to  negotiable  paper i.  228 

burden  of  proof  on  married  woman  trading  as  feme  sole  to  show 

her  ownership  of  property i.  232 

where  statutes  constitute  husband  agent  for  wife  to  contract  with 
respect  to  her  separate  estate,  burden  of  proof  is  on  those  deal- 
ing with  the  husband  to  show  that  contract  was  for  the  use 
and  benefit  of  such  estate i.  244,  245 

but  where  goods  are  bought  within  scope  of  apparent  agency, 

wife  bound,  notwithstanding  subsequent  misappropriation      .       i.  245 

shipmaster  acting  with  advice  of  others  of  skill  and  experience, 

has  strong  evidence  justifying  his  acts,  even  as  to  sale  of  ship       i.  249 

where  shipmaster  sells  ship,  apparel,  or  cargo,  the  bui'den  is  on 
the  purchaser  to  show  the  master's  good  faith,  sound  discre- 
tion, and  necessity  for  sale i.  253 

proof  that  supplies  to  shipmaster  are  necessaries  must  be  made 

by  party  supplying  them i.  261 

in  England  held  that  such  proof  must  be  made  to  extent  of  show- 
ing that  supplies  are  what  a  prudent  owner  would  have  ordered       i.  261 

in  this  country,  in  some  cases,  while  supplies  are  confined  to 
necessaries,  the  decision  as  to  what  are  necessaries  is  left  to 
master  and  not  to  the  supplier i.  261 

the  better  rule  is  that  the  burden  of  proof  that  the  supplies  are 

necessaries  is  on  the  supplier i.  262,  263 

fair  support  by  evidence  of  existing  necessity  being  sufficient      .       i.  263 

if  by  fair  inquiry  such  articles  seem  necessary,  and  are  furnished       i.  263 

burden  of  proof  on  buyer  or  lender  to  show  that  sale  or  hypothe- 
cation of  cargo  was  apparently  necessary i.  278 

same  rule,  but  with  less  strictness,  applies  to  hypothecation  of  ship       i.  278 

so,  as  vessel  is  not  subject  to  lien  for  common  supplies,  same 
burden  of  proof  of  necessity  required  therefor  as  would  sup- 
port hypothecation i.  280 

fact  alone  of  master  being  owner  does  not  justify  implied  hypoth- 
ecation   i.  280 

onus  of  establishing  gift  by  proof  where  fiduciary  relations  exist, 

is  on  the  party  receiving  the  gift i.  452 

so,  as  between  solicitor  and  client,  onus  is  on  the  former  to  show 

the  fairness  of  transaction  between  them i.  452 

and  on  an  agent  dealing  with  his  principal,  burden  is  on  agent 

to  show  fairness i.  452 

same  rules  of  evidence  apply  to  agency  and  partnership      .     .   i.  486,  487 
(See  Partnership.) 

evidence  of  an  agent's  acts  within  the  scope  of  his  employment 
may  be  given  against  the  principal,  in  criminal  as  well  as  in 
civil  proceedings i.  587 

parol  evidence  admissible  to  explain  technical  expressions       .     .      ii.  569 

and  to  correct  papers  referred  to  in  writing  under  the  Statute 
of  Frauds ii.  569 


ANALYTICAL   INDEX.  715 

[References  are  to  both  text  and  notes.] 

EXCHANGE.     (See  Barter.) 

•where  articles  are  exchanged,  with  the  condition  that  there  may 
be  a  return  within  a  named  time,  and  the  return  is  not  made, 
the  title  in  the  property  becomes  absolute  as  in  a  sale     ...         i.  16 
EXECUTORS    AND    ADMINISTRATORS.      (See    Fiduciary 

Relations.) 
FACTORS'  ACTS.     (See  Consignees;    Principal  and  Agent.) 

consignee's  lien  for  advances  on  goods  consigned  to  him     ...       i.  574 

summary  of  acts i.  637 

■where  deposit  of  bill  of  lading  by  consignees  not  made  for  ante- 
cedent debt,  acts  held  to  apply i.  637,  638 

factor,  having  pledged  goods  for  part  of  their  value,  may  pledge 

them  for  balance  of  value,  under  the  acts i.  638 

the  English  acts  do  not  apply  to  pledges  for  antecedent  liabilities       i.  638 

under  Act  of  5  &  6  Vic,  where  advance  is  made  to  agent  known 
to  be  such,  the  other  party,  not  knowing  that  agent  is  acting 
mala  fide,  is  protected i.  638,  639 

but  in  6  Geo.  4,  advances  to  factor,  known  to  be  only  agent,  not 

protected  by  pledge  of  the  goods i.  639 

where  and  where  not  the  advances  are  for  antecedent  debts     .    i.  639-641 

reputed-ownership  clause  applies  to  goods  in  hands  of  factor,  un- 
less the  relation  of  principal  and  factor  is  notorious    ....       i.  641 

under  the  acts,  the  agent  is  one  intrusted  with  the  possession  of 
goods  for  sale,  and  has  no  power  to  pledge  after  authority  re- 
voked     i.  641 

advances  on  indicia  of  ownership  on  one  lot  of  goods  not  pro- 
tected by  deposit  on  that  of  other  goods  in  lieu  of  those  on 
which  advances  were  made i.  642 

possession  by  factor  of  symbols  of  title  not  conclusive  that  he  is 

possessed  of  the  goods i.  642 

must  be  shown  that  principal  intended  the  factor's  possession  at 

time  of  pledge i.  642 

under  the  old  act,  factor  intrusted  with  goods  for  sale  had  no 

power  to  pawn,  and  pawnee  was  liable  to  the  principal  ...       i.  642 

warehouse-keeper,   though  a  broker   accustomed  to  sell,  not  a 

factor  intrusted  with  theii"  possession,  within  the  acts      .     .    i.  642,  643 

nor  is  a  wharfinger i.  643 

but  where  a  broker  by  the  acts  of  the  owner  is  clothed  with  an 
implied  power  to  sell,  as  to  third  parties,  he  is  clothed  with 
such  power i.  643 

there  must,  however,  within  the  acts,  be  an  intrusting  by  the 

principal i.  644,  645 

foreign  principals  have  the  same  rights  to  follow  their  pFoperty 

illegally  dealt  with  by  their  agents,  as  home  principals  have     .       i.  645 

the  acts  do  not  apply  to  the  relation  of  master  and  servant;  there- 
fore merchants'  clerks  are  not  agents  within  the  meaning  of 
the  acts i.  645 

notwithstanding  fraud  of  agent  in  obtaining  possession  of  goods, 

he  may  be  a  party  intrusted  with  them  for  sale  within  the  act      i.  646 

the  acts  only  apply  to  mercantile  transactions i.  646 

at  common  law  a  sale  or  pledge  by  one  without  title  or  authority 
passed  no  property,  notwithstanding  possession  of  goods  or  of 
indicia  of  ownership i.  646 


716  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.  ] 

FACTORS'    ACTS  — (Continued). 

notwithstanding  gi-oss  fraud  iu  the  agent  intrusted  with  the  pos- 
session of  goods  for  sale,  innocent  parties  are  protected  by  the 
acts  for  their  advances i.    643-648 

the  acts  apply  to  Scotland i.  647 

but  held  there  that  agents  at  common  law  have  the  same  powers 

there  as  are  given  by  the  Factors'  Acts i.  648 

FAMILY   EXPENSES.     (See  Married  Women.) 

what  they  are  under  Montana  code i.  232,  233 

husband  and   wife   and   their  property  jointly   and   separately 

chargeable  for i.  232, 233 

FEMES   COVERT.     (See  Equity;  Married  Women.) 
FEMES   SOLE.     (See  Equity;  Married  Women.) 
FIDUCIARY   RELATIONS. 

gift  between  parties  where  exist  is  revocable,  but  if  not  revoked 

becomes  absolute,  and  cannot  be  revoked  by  donor's  executors         i.  83 

sales,  like  gifts,  may  be  revoked  where  such  relations  exist     .     .         i.  85 

the  law  will  relieve  against  acts  of  directors  of  companies  and 
others  in  fiduciary  relations  acting  for  themselves  while  agents 
of  others i.  294 

between  directors  and  stockholders  the  relation  is  that  of  trustees 
and  cestuis  que  trust,  but  otherwise  between  stockholders  and 
corporation i.  298 

one  in  fiduciary  relations  cannot  directly  or  indirectly  purchase 
the  trust  property,  and  if  he  do  so,  sale  is  voidable  at  will  of 
beneficiary i.  298,  299 

in  one  respect  relation  between  directors  and  stockholders  not 
that  of  trustees  and  cestuis  que  trust ;  majority  of  stockholders 
may  ratify  directors'  acts,  but  not  majority  of  cestuis  que  trust      i.  299 

directors  are  properly  described  as  quasi  trustees i   299 

mistake  in  holding  them  to  be  strictly  trustees i.  300 

as  stockholders  they  are  neither  trustees  nor  quasi  trustees      .     .       i.  300 

but  as  regards  necessary  good  faith,  position  of  directors  is  very 
much  that  of  trustees i.  300 

though  president  occupies  fiduciary  relation  to  company,  his  pur- 
chase of  bond  of  the  company  from  the  directors,  for  full  value 
and  for  benefit  of  the  company,  sustained i.  303 

and  where  stockholders  sustained  the  transaction,  bond  and  mort- 
gage from  company  to  its  directors  for  necessary  loan  to  com- 
pany binding i.  303,  304 

and  notwithstanding  the  fiduciary  relations  existing,  fair  and 
open  sale  at  reasonable  price  of  corporation  property  to  direc- 
tor under  mortgage,  to  secure  debt  to  him,  sustained      ...       i.  805 

proceedings  to  set  aside  such  a  sale  should  be  promptly  taken, 

and  not  deferred  for  speculative  purposes i.  305,  306 

although  directors  occupy  a  fiduciary  relation,  yet  fair  transac- 
tions between  them  and  their  company  are  often  sustained       .       i.  308 

but  thorough  good  faith  is  required,  and  the  company's  interest 

must  be  duly  regarded  by  directors  dealing  with  it     ...     .       i.  308 

and  they  must  not  acquire  an  interest  adverse  to  their  duty    .     •       i.  308 

purchasers  of  property  promoting  the  formation  of  a  company  for 

its  management  must  make  disclosure  as  to  the  purchase     .     .       i.  342 

as  between  partners  uien-ima  ^(/es  required i.  342 


ANALYTICAL   INDEX.  717 

[References  are  to  both  text  and  notes.] 

FIDUCIARY   RELATIONS  —  (Continued). 

promoters  of  companies  occupying  fiduciary  relations  held  liable 

to  refund  secret  profits,  without  rescission  of  contract     .     .    i.  367,  368 
relation  between  trustee  and  cestui  que  trust  the  leading  one  of  a 

fiduciary  character i.  444 

and  is  the  criterion  for  judging  of  other  cases i.  444 

rule  in  Clayton's  case  stated i.  444 

as  to  following  trust  estate  in  hands  of  third  parties      .     .     .    i.  444-451 

or  when  mixed  with  other  property  of  the  trustee i.  450 

fiduciary  not  allowed,  at  expense  of  confiding  party,  to  retain  ad- 
vantages that  one  not  in  such  relation  could  retain     .     .     .    i.  445-451 
unfair  advantage  taken  of  one  seeking  advice  set  aside  from  the 

confidential  relation  between  the  parties i.  451 

gift  of  promissory  note  from  a  poor  patient  to  his  medical  attend- 
ant set  aside  on  ground  of  their  confidential  relations     .     .    i.  451,  452 
onus  of  establishing  gift  where  fiduciary  relations  exist  is  on  the 

party  receiving  the  gift i.  452 

so  iu  transactions  between  solicitor  and  client,  burden  on  former 

to  show  fairness  of  transaction i.  452 

purchase  by  attorney  from  his  client  will  only  be  sustained  by 

showing  proper  advice  against  himself i.  452 

such  parties  may  deal  with  each  other  where  their  positions  are 

clearly  understood  between  them i.  452 

agent  may  take  a  lease  from  his  principal  on  making  full  dis- 
closure in  good  faith i.  452 

but  without  this  neither  agent,  nor  his  assignee  with  notice  of 

agency,  can  sustain  the  lease i.  452 

where  transaction  is  in  good  faith  and  with  full  knowledge,  delay 

and  acquiescence  may  prevent  relief i.  452 

but  unless  in  very  strong  case,  even  a  perfectly  fair  transaction 

will  be  set  aside i.  452-454 

even  where  sale  at  public  auction,  bond  Jide,  and  at  a  fair  price  .  i.  453 
the  law  is  strong  against  the  same  party,  as  a  trustee,  being,  in 

effect,  both  buyer  and  seller i.  454 

purchases  of  trust  estate  made  by  such  parties  often  held  to  be 

purchases  for  the  cestui  que  trust i.  454 

alleged  ratification  as  between  such  parties  will  always  be  closely 

examined 1.  454 

and  acquiescence  must  be  with  full  information  of  all  the  facts  .  1.  454 
though,  in  some  cases,  fi'ora  great  length  of  time,  acquiescence 

may  be  presumed i.  454,  455 

unfair  transaction  may  be  set  aside  where  relation  in  only  quasi 

fiduciary i.  455 

inadequacy  of  consideration  an  important  element  in  such  case  .  i.  455 
even  an  entire  stranger  may  be  affected  by  rule  as  to  fiduciaries .  i.  455 
but  as  transaction  is  only  voidable  at  election  of  cestui  que  trust, 

where  it  has  been  adopted  and  approved  by  him  and  is  for  full 

consideration,  laches  may  prevent  him  from  setting  it  aside     i.  455,  456 
■where  rights  of  innocent  third  parties  intervene,  cestui  que  trust 

may  be  unable  to  set  aside  sale i.  456 

innocent  third  parties  without  notice,  may  obtain  a  good  title 

from  one  who  obtained  his  title  by  fraud i.  456 

after  fiduciary  relations  cease,  purchases  then  made  between  those 

who  had  stood  in  fiduciary  relations  may  be  sustained    .     .    i.  456,  457 


718  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

FIDUCIARY    RELATIONS  —  (Continued). 

where  one  strictly  not  a  trustee  purchases  property  at  a  judicial 
sale,  he  may  not  be  liable  to  account  for  profits  to  another  in- 
terested in  the  property i.  457 

where  one  whose  duty  it  is  as  agent  to  prevent  his  principal's 
property  being  sold  allows  it  to  be  sold,  and  buys  it  himself,  he 
holds  it  as  trustee i.  457 

generally  the  rule  is,  no  matter  how  fair  the  transaction  may  be, 
the  purchase  of  a  trust  estate  by  trustees  and  others  having  a 
confidential  character  may  be  set  aside  by  the  cestui  que  trust  .       i.  457 

the  principle  applies  to  purchases  by  assignees  in  bankruptcy, 
their  solicitors  and  agents,  executors,  and  others  acting  in  a 
confidential  character i.  458,  4.59 

the  ground  is  that  one  cannot  be  both  buyer  and  seller,  and 
purchase  may  be  set  aside  though  the  trustee  gained  no 
advantage i.  458,  459 

if  he  makes  a  benefit,  he  must  account  for  it;  if  he  sustain  a  loss, 

he  must  bear  it  himself i.  459 

a  purchase  by  a  member  of  a  firm  of  the  interest  therein  of  his 

deceased  partner  set  aside i.  459 

party  taking    trust    property   with   knowledge  of   the   trust   is 

charged  with  the  trust i.  458-460 

if  purchaser  from  executor  knows  he  intends  to  misapply  pro- 
ceeds, purchaser  buys  at  his  peril i.  4C(l 

and  is  responsible  for  the  property,  as,  under  like  circumstances, 

is  a  pledgee i.  46.1 

but  where  the  one  entitled  to  the  proceeds  brings  an  action  there- 
for, he  ratifies  the  sale i.  460 

rights,  powers,  aud  duties  of  executors  and  guardians    .     .     .    i.  460,  461 

an  agent  occupying  a  fiduciary  relation  must  account  to  princi- 
pal for  profits  made  therein i.  461 

and,  generally,  agent  or  trustee  cannot  purchase  from  his  own 
purchaser  property  entrusted  to  him  for  sale,  except  at  will  of 
principal  or  cestui  que  trust i.  462 

directors  as  trustees  held  liable  to  bank  for  profits  made  on  shares 

of  the  bank  by  their  sales  thereof i.  462 

as  to  following  proceeds  of  sale  in  hands  of  parties  standing  in  a 

fiduciary  character '.     .     .       i.  462 

transactions  between  parties  occupying  fiduciary  relations   are 

voidable,  and  not  void i.  463 

(See  Void  and  Voidable.) 

but  may  be  affirmed,  by  acquiescence,  with  full  knowledge,  or  acqui- 
escence may  sometimes  be  presumed  from  laches i.  405 

where  fiduciary  relations  exist,  trust  will  attach  to  trust  property; 

the  whole  may  be  treated  as  trust  property,  subject  to  equities       i.  547 

trustee  or  executor  not  personally  responsible  for  loss  caused  es- 
tate by  fraudulent  acts  of  necessary  agents i.  616,  617 

but  is  liable  where  his  own  line  of  duty  is  not  strictly  pursued     .       i.  617 
FIXTURES.     (See  Frauds,  Statute  of.) 

tenant's  fixtures  considered  closely  analogous  to /thc^us  industriales     ii.  242 

what  are  fixtures,  fully  examined  in  a  late  English  case     .     .    ii.  242-244 

trade  fixtures  come  within  Bills  of  Sale  Acts,  personal  chattels 

including  fixtures ii.  244,  245 


ANALYTICAL   INDEX.  719 

[References  are  to  both  text  and  notes'! 
FIXTURES— (Continued). 

question  is  not  whether  or  not  they  are  movable,  but  whether 

they  are  essentially  a  part  of  the  building  containing  them      .      ii.  245 

looms  in  a  cotton-mill,  though  easily  removed,  held  fixtures    .     .      ii.  245 

unsound  distinction  as  to  their  being  governed  by  the  intention 

of  tenant  affixing  them ii.  246 

under  Bills  of  Sale  Acts,  loose  articles,  as  cranes,  guys,  etc.,  un- 
der mortgage,  not  fixtures ii.  246 

articles  which,  as  trade  fixtures,  as  between  landlord  and  tenant, 
would  be  in  the  latter,  though  fixed  only  in  a  quasi  permanent 
manner,  may  go  to  a  mortgagee  of  the  freehold ii.  246 

assignment  of  fixtures  by  a  tenant  might  be  within  the  Bills  of 
Sale  Acts,  when  a  conveyance  of  the  same  articles  by  vendor 
or  mortgagor  in  fee  might  not  be ii.  246,  247 

though  the  distinction  might  not  hold  good  where  the  tenant,  with 

the  fixtures,  assigned  his  interest  in  the  land ii.  247 

trade  fixtures,  such  as  engine  and  boiler,  though  fixed  for  use  and 
not  to  improve  the  inheritance,  and  easily  removable,  pass  un- 
der mortgage  of  freehold ii.  247 

so  leather  driving  belts,  removable  at  pleasure,  pass  under  mort- 
gage of  the  freehold,  and  do  not  require  registration  as  personal 
chattels,  within  Bills  of  Sale  Acts ii.  247 

■where  mortgagor  in  possession  lets  premises,  trade  fixtures  at- 
tached by  tenant  do  not  go  to  mortgagee ii.  247,  248 

mortgage  by  a  lessee  will  pass  fixtures,  the  power  to  move  which 

was  in  him ii.  248 

fixtures  attached  by  mortgagor  after  mortgage  usually  pass  to 

mortgagee ii.  248 

mortgagee  takes  in  priority  over  subsequent  assignee,  even  of 
trade  fixtures ii.  248 

very  extreme  views  on  tenant's  right  to  remove  buildings  as  trade 
fixtures  held  in  a  case  in  the  Supreme  Court  of  the  United 
States ii.  248-2.50 

contra  holding  of  the  court  below  considered  sounder     ....      ii.  250 

tenant's  right  to  remove  the  fixtures  continues  only  during  the 

period  of  his  possession ii.  250 

fixtures  and  accessories  of  a  railway  in  effect  the  same  ....      ii.  250 

lien  on  a  railroad  and  property  attaches  to  land  granted  to  the 

company ii.  250 

rule  in  maritime  cases  does  not  apply  to  railroads;  thus  rails  sup- 
plied and  affixed  come  within  purview  of  prior  mortgage      .     .     ii.  250 

in  Indiana,  under  their  statutes,  chattels  real  are  salable,  under 

execution  as  real  estate,  and  not  as  personal  property     ...      ii.  250 

indebitatus  assumpsit  for  goods  sold  and  delivered  does  not  lie  by 

one  who  affixes  them  to  the  freehold ii.  243-247 

nor  by  the  owner  of  the  house  (where  affixed)  selling  them  to  the 

incoming  tenant ii.  247-250 

but  it  has  been  held  to  lie,  where  the  sale  has  been  made  by  the 

tenant  to  the  landlord ii.  250,  251 

as  it  will  be  sustained  for  crops  of  wheat,  hay,  and  corn     ...      ii.  251 

sale  of  fixtures  unsevered  to  a  third  party  is  neither  within  the 
4th  nor  17th  section  of  the  statute,  but  is  a  license  to  the  ven- 
dee to  enter  and  remove  them  during  the  term  ....      ii.  251,  252 


720  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

FIXTURES  —  {Continued). 

action  as  for  goods  sold  and  delivered,  will  not  lie  for  them     .     .      ii.  2ol 
but  on  principle  and  analogy  sale  of  fixtures  to  be  removed  by  ven- 
dor and  delivered  as  chattels,  is  within  the  17th  section  .     .   ii.  251-252 

though  not  when  to  be  removed  by  the  vendee ii.  252 

riofhts  of  the  tenant  as  to  fixtures,  and  limitations  of  such  rights  ii.  250-252 
FRAUD.     (See  Action;   English  Companies'  Acts;   Infants;    Mixing 
OF  Goods;  Principal  and  Agent.) 
a  vendee  acquires  no  title,  generally,  in  goods  obtained  under 

fraudulent  pretences i.  16 

but  where  the  vendor  of  goods  willingly  holds  a  valuable  consider- 
ation received  for  them,  he  has  parted  with  the  ownership  of 
the  goods,  and  is  not  at  liberty  to  treat  the  sale  as  a  nullity  on 

account  of  the  fraud  of  the  vendee i.  IG 

a  fraudulent  pretence  of  passing  property  in  goods  is  not  a  sale, 
as  pretending  to  pass  the  property  in  logs,  to  avoid  a  contract 
to  deliver  the  manufactured  lumber,  when  the  lumber  was  to 

be  manufactured  for  the  pretended  seller i.  IG 

gifts  and  sales  revocable  for i.  85 

where  there  is  a  sale  and  delivery  of  goods,  and  a  mere  colorable 
agreement  that  the  property  shall  not  pass,  such  agi-eement  is 

invalid i.  96,  97 

under  an  agreement  for  future  sale,  chattels  may  be  held,  and  no 

property  pass,  the  holding  being  not  necessarily  fraudulent      .         i.  99 
where  fraud  has  been  practised  on  an  infant,  under  which  he  has 
paid  money,  he  can  rescind  the  contract  and  recover  back  his 

money i.  123 

infant's  fraud  and  misrepre.sentation.     (See  Infant.)  ....       i.  133 
contracts  with  lunatic,  with  knowledge  of  insanity,  set  aside  for 

fraud.     (See  Insanity.) i.  138,  141 

where  consideration  for  lunatic's  contract  is  inadequate,  slight 

evidence  will  e.'^tabli.sh  fraud i.  142 

equity  grants  relief  from  drunkard's  contracts  on  ground  of  fraud       i.  147 
husband  may  make  settlement  on  his  wife  when  claims  of  exist- 
ing creditors  are  not  impaired,  and  not  done  with  fraudulent 

intent i.  208 

property  acquired  by  a  married  woman,  after  marriage,  is  looked 
upon  with  suspicion,  which  has  to  be  overcome  in  contests  be- 
tween her  hu.sband  and  his  creditors i.  216 

but  where  obtained  without  fraud,  by  gift  or  purchase,  and  held 
for  years  as  her  separate  property,  will  be  protected  against  her 

husband's  creditors i.  219 

where  fraudulent  representations  by  company  to  husband,  as 
agent  for  wife,  on  bill  filed  to  set  aside  sale  of  stock,  wife  not 
estopped  by  subsequent  acts  of  husband  in  employment  of  com- 
pany in  paying  out  money  received  for  the  stock  .  .  .  .  i.  226,  227 
husband  may  be  agent  to  manage  wife's  business,  but  fraudulent 
use  of  wife's  name  by  insolvent  in  carrying  on  his  own  business 

is  no  protection i.  227 

where  fraud  charged  in  such  cases,  transaction  will  be  strictly 

scrutinized  by  the  courts i.  227 

but  fraud  will  not  be  presumed  from  husband  giving  wife  his  ser- 
vices in  connection  with  the  conduct  of  her  separate  business  .       i.  227 


ANALYTICAL   INDEX.  721 

[References  are  to  both  text  and  notes.] 

FRAUD  —  (Continued) . 

gambling  transactions,  induced  by  husband  of  wife,  cancelled  as 
void  for  illegality  in  New  Jersey,  and  decree  for  return  of  con- 
sideration against  broker,  with  knowledge i.  228 

where  a  married  woman  takes  a  benefit  from  the  false  representa- 
tions of  her  husband,  acting  as  her  agent,  she  is  affected  by 
the  fraud '.       i.  231 

so  she  may  have  such  a  community  of  interest  with  her  husband 

as  to  be  liable  for  his  fraud i.  231 

in  Indiana,  married  woman's  representations  bind  her  by  statute 

where  her  denials  would  operate  as  fraud i.  234 

but  not  where  representation  is  obtained  by  another  in  fraudulent 

collusion  with  her  husband i.  234 

except  as  to  negotiable  paper  in  hands  of  innocent  tliiid  party 

without  notice i-  234 

fraud  is  to  have  no  consideration  in  contracts  made  by  married 

women  in  matters  beyond  their  power i.  239 

in  absence  of  fraud  and  collusion  between  husband  and  creditor, 
married  woman  liable  in  some  of  the  States,  as  Iowa,  for  family 
expenses  independent  of  her  contract i.  241 

while  fraud  between  husband  and  wife  to  injury  of  third  party 
may  be  ground  to  set  aside  the  transaction,  it  may  not  render 
wife's  previously  owned  property  liable  therefor i.  245 

without  fraud,  husband  in  Alabama,  by  contract  with  his  wife, 
or  by  gift  to  her,  can,  except  as  to  existing  creditors,  invest 
separate  estate  in  her  earnings  in  her i.  246 

not  fraud  on  creditors  for  husband  to  labor  on  wife's  separate 

property,  or  to  permit  her  to  do  so  i.  246 

fraudulent  drafts  drawn  on  owners  of  vessel  do  not  bind  vessel  or 
owners,  even  in  hands  of  innocent  holders  for  value,  though  the 
drafts  on  their  face  express  that  they  are  "  recoverable  against 
vessel,  freight,  and  cargo  " i.  246 

where  directors  of  company  ratify  sale  of  stock  made  by  presi- 
dent and  cashier  to  themselves,  the  latter  are  estopped  from 
claiming  that  the  transaction  was  merely  colorable  for  deceptive 
or  illegal  purpose ,  .  i.  2f)7 

cases  of  illegality  as  between  purchasers  and  company  ....       i.  297 

minority  of  stockholders  can  proceed  for  fi-aud  against  corpora- 
tion and  others  participating  in i.  297 

but  will  lose  this  right  by  tacJies i.  297 

directors,  as  agents  of  company,  are  responsible  to  the  company 
for  misconduct  and  fraud,  and  not  to  individual  stockholders 
by  action i.  297 

where  no  unfairness  or  fraud,  purchases  of  company  cannot 
be  impeached  by  those  who  at  the  time  were  majority  of 
directors i.  298 

where  no  charge  of  fraud,  note  for  loan  by  one  director  to  the 

company  sustained,  the  other  three  directors  voting  for  it    .     .       i.  298 

directors  not  personally  liable  to  stockholders  unless  where  there 

has  been  negligence  or  fraud i.  298 

where  director's  purchase  of  company  property  void  of  fraud,  it 

may  be  ratified  by  stockholders i.  299 

and  generally,  where  no  fraud,  by  majority i.  299 

VOL.  II.  46 


722  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 
FRAUD  —  (Continued). 

where  contract  between  railway  company  and  construction  cona- 
pany  set  aside  for  fraud,  directors  of  the  former  being  members 
of  the  latter,  held  that  the  latter  company  could  recover  on 
quantum  meruit,  hut  not  under  the  coutract i.  301,302 

contract  induced  by  fraud  is  not  void,  but  may  be  avoided  or 
affirmed  by  party  defrauded i.  312,  313 

directors  in  issuing  a  prospectus  should  equally  avoid  the  sup- 
pressio  veri  as  the  suggestio  falsi 1.  316 

to  make  party  liable  for  false  representation,  the  injury  must  be 

direct  result  of  representation  intended  to  be  acted  on     .     .     .       i.  316 

directors'  imprudence  will  not  make  them  personally  liable,  unless 

amounting  to  crassa  negligentia i.  316 

where  contract  entered  into  through  fraud,  no  defence  that  party 

defrauded  might  have  ascertained  the  fraud  before  contracting      i.  327 

as  to  fraudulent  transactions  in  purchases  of  stock    .     .     .     .    i.  327-342 

where  party  defrauded  does  not  set  aside  contract  voidable  for 
fraud,  he  may  be  concluded  where  rights  of  third  parties  in- 
tervene        i.  331,  341 

purchaser  of  goods  may  retain  them  and  have  an  action  against 

seller  for  fraud    .     ." i.  336,  337 

but  this  does  not  apply  to  purchasers  of  stock  under  English 
Companies'  Acts,  where  rescission  of  contract  and  restitutio  in 
integrum  must  be  sought i.  337-342 

where  action  can  and  where  it  cannot  be  maintained  against  com- 
pany for  fraud  of  agents i.  338-340 

contract  voidable  for  fraud  is  valid  till  rescinded i.  341 

where  party  who  might,  for  fraud,  rescind  contract  for  shares, 

after  discovery  of  fraud  acts  as  shareholder,  he  affirms  contract       i.  367 

where  fraudulent  certificate  of  shares  issued  by  secretary  without 

authority,  company  held  estopped .       i.  368 

company  responsible  for  fraud  by  agent  committed  within  scope 

of  employment i.  368,  369 

but  where  the  party's  own  negligence  contributes,  though  trans- 
action may  be  set  aside,  he  will  not  get  costs i.  369 

where  question  is  between  company  and  shareholder  for  calls, 
former's  fraud  and  prompt  repudiation  of  shares  is  good 
defence i.  373 

deed  held  invalid  where  executed  by  trustees,  to  which  their  secre- 
tary fraudulently  affixed  their  seal i.  379 

held,  under  Banking  Act  of  1864,  that  transfer  of  stock  to  in- 
digent transferee  is  fraud,  and  liability  of  transferor  continues       i.  387 

where  sale  and  transfer  of  stock  without  fraudulent  intent  of 
evading  liability  as  stockholder,  transaction  will  be  sustained 
exempting  seller  from  liability  for  calls i.  392,  393 

where  transfer  is  merely  coloiable  to  avoid  responsibility  it  is 

void i.  396 

bonds,  from  suspicious  circumstances  connected  with  them,  such 
as  unfilled  blanks,  over-due  coupons,  etc.,  may  cause  holders 
to  be  charged  with  notice  of  their  invalidity  where  they  have 
not  been  duly  issued 5.  396,  397 

when  fraud  does  and  when  it  does  not  vitiate  negotiable  paper  in 

hands  of  innocent  third  parties 1.  397-400 


ANALYTICAL   INDEX.  723 

[References  are  to  both  text  and  notes  ] 

FRAUD— (Continued). 

where  evidence  of  7nala  fides  on  face  of  negotiable  paper,  parties 

taking  it  affected  by  tlie  fraud i.  400 

but  bond  fide  holders  often  protected  even  where  fraud  in  issuing 

negotiable  paper i.  401 

as  to  fraud  and  irregularities  in  issue  of  corporation  bonds  and 

stock i.  401 

same  defence  for  fraud  not  good  as  against  assignee  as  against 

company i.  401 

fraud  to  treat  unpaid  subscriptions  to  stock  as  ordinary  indebted- 
ness        i.  403 

sale  and  assignment  of  stock  without  fraud  not  set  aside  for 

hardship i.  404 

■where  party  defrauded  does  not  act  promptly  he  may  make  him- 
self liable  to  third  parties i.  406 

where  purchase  for  value  can  be  set  up  in  a  suit  on  fraudulently  is- 
sued bonds,  any  one  taking  through  such  a  holder  can  so  claim      i.  406 

see  Municipal  Corporation  Transactions  and  .     .     .     .    i.  406-443 

purchaser  without  notice  for  valuable  consideration  may  have 
good  title  though  purchasing  from  one  who  obtained  the  title 
by  fraud i.  456 

each  partner  is  liable  for  the  fraud  of  the  others  committed  within 
scope  of  the  partnership,  particularly  when  participating  in 
the  fruits •       i.  494 

fraudulent  sale  is  voidable  only,  but  cannot  be  avoided,  in  hands 

of  innocent  third  parties,  where  property  has  passed  .     .     .    i.  549,  550 

but  not  so  where  the  property  has  not  passed  to  the  party  perpe- 
trating the  fraud i.  549,  550 

principal  and  agent  are  both  liable  for  fraudulent  acts  of  agent 

within  scope  of  employment i.  598,  599 

■where  transactions  are  -with  a  cashier  of  a  bank,  personally,  the 

bank  is  not  liable  for  his  fraud i.  603 

fraud  and  concealment  by  agent i.  605-622 

(See  Principal  and  Agent.) 

trustee  or  executor  not  personally   responsible  for  loss  caused 

estate  by  fraudulent  acts  of  necessary  agents i.  616,  617 

■where  secret  gratuity  to  agent  to  induce  to  fraudulent  contract, 

principal  may  set  the  contract  aside i.  618,  619 

railway    station-agents    and    shipmasters    fraudulently    signing 

freight  receipts  and  bills  of  lading ii.  1-74 

(See  Railway  Freight  Receipts.) 
FRAUDS,  STATUTE  OF.  (See  Acceptance  ;  Actual  Receipt; 
Barter  ;  Earnest  or  Part  Payment  ;  Fixtures  ;  Note 
or  Memorandum  in  Writing  ;  Work  and  Labor.) 

often  a  test  whether  a  transaction  is  a  sale,  as  to  whether  or  not 

it  comes  within  the  statute i.  10 

an  agreement  to  manufacture  lumber,  not  coming  within   the 

statute,  is  not  a  contract  of  sale i.  16 

an  oral  agreement  to  sell  lands  in  payment  of  goods  will  be  en- 
forced against  the  vendor  of  the  goods,  notwithstanding  the 
statute,  tbe  vendor  of  the  lands  being  willing  to  convey  them  .         i.  23 

so  also  where  oral  contract  to  perform  labor  for  land,  money  de- 
mand will  not  lie  for  the  labor  unless  refusal  to  convey  land    .  i.  23,  24 


724  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

FRAUDS,    STATUTE    OF —  (Continued). 

statute  complied  with  on  sale  of  goods  for  goods  by  receipt  of  part 

of  price  in  goods i.  24 

oral  agreement  for  sale  or  exchange  of  lands  within  statute     .     .         i.  92 
acquiescence  may  be  conclusive  even  against  the  requirements 

of  the  Statute  of  Frauds i.  593 

the  4th  and  17th  sections  of  29  Car.  2  stated ii.  216 

amended  by  Lord  Teuterden's  Act ii.  216,  217 

these  acts  to  be  read  together ii.  217 

cases  within  the  purview  of  the  statute  relating  to  acceptance  and 

actual  receipt ii.  217-220 

what  are  within  the  statute ii.  221-241 

contract  for  future  sale  of  growing  timber,  to  be  felled  by  the  sel- 
ler, within  the  17th  section ii.  221 

res  incoporales  do  not  come  within  the  act ii.  221 

choses  in  action,  as  shares,  not  goods,  wares,  and  merchandise, 

within  the  act ii.  221,  222 

"goods  and  chattels  "  in  the  statute  of  James  is  a  wider  terra, 

embracing  debts  as  well  as  bills  of  exchange ii.  221 

distinction  between  yn/c/i/.s  induxtrinles  and  fructus  nnturales  .  ii.  222,223 
sales  of  growing  crops  and  of  timber  held  not  to  be  within  the 

4th  section      .     .     .  • ii.  223,  224 

sale  of  the  whole  produce  of  the  land,  though  held  not  to  come 
within  exemption  of  the  Stamp  Act,  is,  contra  to  general  view 
of   the  holding,  w'ithin   the    17th   section   of   the  Statute   of 

Frauds ii.  224,  225 

where  sale  of  growing  crops  gives  no  interest  in  land,  it  is  within 

the  17th,  and  not  the  4th  section  of  the  act ii.  225,  226 

a  sale  of  growing  turnips  was  held  to  come  within  the  4th,  and 
not  the  17th  section,  but  under  the  misapprehension  of  a  case 

it  purported  to  follow ii.  226,  227 

and  was  in  effect  overruled ii.  227 

the  early  cases  in  much  confusion,  the  question  depending  upon 

whether  or  not  the  purchaser  obtained  an  interest  in  the  land  ii.  227-229 
when  at  time  of  delivery  the  subject  of  sale  is  a  chattel,  the  case 

is  within  the  17th  section ii.  229,  230 

the  same  doctrine  held  in  Ireland ii.  230,  231 

the  law  as  to  emblements ii.  230,  231 

other  cases  to  the  same  effect ii.  232-234 

but  sale  of  growing  fruit  on  pear-trees,  intended  to  pass  an  imme- 
diate interest,  is  held  to  be  under  the  4th,  and  not  the  17th 

section ii.  235.  236 

question  is,  in  case  of  loss,  upon  whom  it  would  fall      ....      ii.  235 
distinction  pointed  out  between  the  effect  of  the  English  Stamp- 
Act  and  the  Statute  of  Frauds ii.  236,  237 

though  not  fnicliix  industriales,  growing  grass,  etc.,  may  or  may 
not  come  within  the  4th  or  17th  section  of  the  statute  accord- 
ing to  the  facts ii.  237,  238 

depending  upon  whether  or  not  an  interest  is  intended  to  be  con- 
veyed in  the  land ii.  238-24C 

what  is  and  what  is  not  an  interest  in  land ii.  240,  241 

fniclus  induxtrialen  generally  within  17th  section,  but  when  sold 

with  the  land  they  are  realty ii.  240 


ANALYTICAL   INDEX.  725 

[References  are  to  both  text  and  notes.] 

FRAUDS,    STATUTE   OV  —  (Continued). 

fructus  industriales  considered  by  Littledale,  J.,  as  closely  analo- 
gous to  tenant's  fixtures,  as  going  to  the  executor  and  not  to 
the  heir,  and  as  within  the  17th  and  not  the  4th  section  of  the 
statute ii.  242 

sale  to  a  third  party  of  fixtures  unsevered  is  neither  within  the 
4th  nor  17th  section  of  the  statute,  but  is  a  license  to  the  ven- 
dee to  enter  and  remove  them  during  the  term ii.  251 

(See  Fixtures.) 

exchange  or  barter  comes  within  the  17th  section  of  the  statute  ii.  265-274 
(See  Barter.) 

auction  sales  are  within  the  Statute  of  Frauds ii.  321 

the  essential  requisites  of  the  note  or  memorandum  in  writing  ii.  584-674 
(See  Note  or  Memorandum  in  Writing.) 

a  letter  of  guaranty  is  au  undertaking  to  pay  the  debt  of  another, 

and  must  be  in  writing ii.  673 

an  agreement  not  to  set  up  a  trade  during  the  lives  of  the  parties 

is  within  the  statute ii.  673 

contract  of  insurance  is  not  within  the  statute ii.  674 

FREE   ON   BOARD. 

property  in  goods  does  not  necessarily  pass  because  shipped 

"f.  o.  b."       i.  108 

some  English  decisions  to  the  contrary  unsound i.  108 

FRUCTUS   INDUSTRIALES.     (See  Frauds,  Statute  of.) 
FRUCTUS  NATURALES.     (See  Frauds,  Statute  of.) 
GAMBLING    TRANSACTIONS, 

induced  by  husband,  set  aside  by  wife,  in  New  Jersey,  for  ille- 
gality, and  consideration  ordered  returned  by  broker  holding  i.  228 

dealing  in  futures  not  invalid  where  delivery  of  the  goods  and 
payment  are  intended,  but  where  this  is  not  intended,  mere 
wagering  contracts  are  void  in  this  country i.  496 

in  England,  this  was  not  so  at  common  law,  but  it  is  now  so  by 

statute i.  496 

agent,  notwithstanding  the  statute,  cannot  retain  money  received 

for  his  principal  on  ground  of  illegality  of  contract     .     .     .    i.  543,  544 

difference  between  enforcing  illegal  contracts  and  asserting  title 

to  money  arising  from  them i.  544 

GENERAL  AVERAGE. 

sacrifices  necessary  for  ship  subject  of  general  average,  whether 
made   by   sale  of   part  of   cargo  or   by   payment  of  marine 

interest i.  272 

GIFT, 

is  where  the  property  in  a  commodity  is  transferred  without  a 

valuable  consideration i.  2,  6 

is  a  contract,  and  when  executed  passes  property  in  subject    .     .         i.  33 

but  while  executory  and  no  delivery,  cannot  be  enforced     ...         i.  33 

except  where  made  subject  of  trust i.  33 

gifts  are  executory  and  executed i.  33 

also  inter  vivos,  and  mortis  causa i.  33 

cheque  a  good  gift  inter  vifos,  where  presented  before  death  of 

drawer i.  33 

mortis  causa  made  in  contemplation  of  death i.  34 

last  sickness  not  an  essential  ingredient  in i.  34 


726  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

GIFT— (Continued). 

but  made  iu  contemplation  of  the  conceived  approach  of  death 
from  whatever  cause,  voluntary  or  involuntary,  if  one  of  immi- 
nent peril,  good i,  34 

as,  in  last  sickness,  or  languishing  on  a  death  bed,  or  by  one 
going  to  the  front  in  battle,  or  intending  to  commit  suicide, 

where  the  contemplated  death  results i.  34 

badly  decided  case  in  New  Brunswick  (Earle  v.  Botsford)  wrongly 

holds  contra i.  34 

gift  inlei-  vivos  generally  absolute  unless  condition  expressed    .     .         i.  35 
in  gifts  mortis  causa  it  is  always  imjjlied  that  the  gift  is  not  to  be 

absolute  if  the  donor  escape  the  apprehended  peril     ....         i.  35 

gifts  inter  vivos  may  be  given  conditionally i.  35 

gifts  mortis  causa  only  differ  from  conditional  gifts  inter  vivos  in 
that  in  the  former  the  condition  is  always  implied  where  not 

expressed i.  35 

Illinois  case  (Virgin  v.  Gaither)  an  instance  of  conditional  gift 

inter  vivos i.  35 

distinction  between  gifts  inter  vivos  and  rnorlis  causa  illustrated 

by  this  case i.  35 

conditional  gift  to  take  effect  at  death  held  aborti\"e  in  Pennsyl- 
vania as  bad  testamentary  disposition i.  36 

able  exposition  of  law  by  Gibson,  C.  J.,  in  Nicholas  v.  Adams     .         i.  36 

may  be  conditional  gift  not  mortis  causa i.  37 

apprehension  of  death  from  impending  peril  sufficient  to  make  a 

good  gift  mortis  causa i.  38 

donor  must  part  with  dominion  over  gift i.  38 

qualifications  distinguishing  gifts  mortis  causa  and  inter  vivos       .         i.  38 
in  Louisiana  the  gift  mortis  causa  can  only  be  by  will    ....         i.  38 

instances  of  good  and  bad  gifts  mortis  causa i.  39-41 

not  good  if  made  in  general  expectation  of  death i.  41 

many  of  the  gifts  called  gifts  mortis  causa,  by  civil  law  were  inter 

vivos,  or  void  as  bad  testamentary  dispositions i.  41 

instance  from  Justinian 1.  41 

cases  sustaining  the  well-decided  case  of  Nicholas  v.  Adams    .     .  i.  42,  43 

law  correctly  stated  in  21  Am.  Law  Rev i.  43 

some  gifts  held  rnortis  causa  are  conditional  gifts  inter  vivos     .     .  i.  43,  46 

gifts  inter  vivos  may  be  absolute  or  conditional i.  47 

instances  of  such  conditional  gifts  stated i.  47 

cases  stated  where  gifts  were  inter  vivos,  though  wrongly  held  as 

gifts  mort'is  enusd i.  48 

clear  that  there  may  be  conditional  gifts  inter  vivos i.  37,  49 

this  clear  fact  denied  in  some  of  the  American  cases,  which  hold 

that  such  gifts  must  be  "  absolute  and  unconditional  "  .       i.  49,  50,  57 

origin  of  this  mistake  pointed  out i.  51 

the  authorities  relied  on  mean  that  an  inchoate  gift  cannot  be  en- 
forced, not  that  there  cannot  be  a  conditional  gift       ....         i.  52 
that  it  must  not  be  a  mere  promised  g^ft,  but  an  actual  gift  and 

delivery i.  52 

the  authorities  examined i.  54-56 

further  authorities  stated,  incorrectly  holding  that  there  cannot  be 

conditional  gifts i.  57,  58 

such  gifts  of  most  frequent  occurrence,  and  their  validity  in  Eng- 
land never  questioned i.  58 


ANALYTICAL   INDEX.  727 

[Keferences  are  to  both  text  and  notes.] 
GIFT  — (Continued). 

American  cases  decided  on  principle  that  conditional  gifts  inter 

vivos  are  bad,  not  law i.  59 

American  cases  sustaining  such  gifts  stated i.  59,  65 

English  cases  to  the  same  effect .         i.  65 

so  gifts  may  be  subject  to  reservations  or  limitations      ....         i.  65 

American  cases  to  this  effect  stated    .     .     . i.  66,  67 

general  doctrine  of  conditions  is  applicable  to  gifts;  authorities 

cited i.  68 

recent  English  case  of  conditional  gift  stated i.  69 

unsound  dictum  in  the  Supreme  Court  of  the  United  States  that 
there  cannot  be  a  good  conditional  gift  inter  vivos  to  take  effect 

on  donor's  death i.  69 

recent  bad  decision  in  Virginia  following  such  unsound  obiter 

dictum i.  70 

English  cases  cited  where  gifts  to  take  effect  on  such  contingency 

held  good i.  70 

such  gift  not  necessarily  testamentary i.  70 

as  it  was  in  English  case  stated i.  70 

and  in  the  Supreme  Court  of  the  United  States  case  itself  ...  i.  70 
actual  gift  in  prcesenti,   with  delivery,  to   become  absolute   in 

futuro,  good,  though  contingency  be  donor's  death      ....         i.  70 
numerous  English  aud  American  cases  cited  sustaining  this    .     .  i.  70,  78 

summary  of  the  law i.  78 

another  fallacy  in  the  U.  S.  S.  C  case  (Basket  v.  Hassell,  107 
U.  S.   Gli)  is  that  gifts  inter  vivos  must  be  "  absolute  and 

irrevocable  " i.  79 

already  shown  that  such  gift  may  be  conditional;  so,  also,  it  may 

be  revocable , i.  80 

numerous  American  and  English  cases  cited  to  show  this  .  .  .  i.  80-83 
where  fiduciary  relations  exist,  a  gift  is  revocable,  and  when  not 

revoked  becomes  absolute .         i.  83 

incorrect  holding  of  the  N.  Y.  Court  of  Appeals,  practically  fol- 
lowing unsound  test  from  Basket  v.  Hassell,  and  reversing  cor- 
rect holding  in  N.  Y.  Supreme  Court  that  a  revocable  gift  was 

not  good  inter  vivos i.  83,  84 

previous  contrary  decision  in  N.  Y.  Court  of  Appeals  sounder  law  i.  84,  85 
gifts  the  same  as  sales  may  be  revoked  where  there  is  a  condition 
to  that  effect,  or  for  fraud  or  mistake,  or  for  undue  influence 

where  fiduciary  relations  exist i.  85 

differences  as  to  right  of  revocation  between  gifts  inter  vivos  and 

mortis  causa  stated i.  85,  86 

gift  held  inter  vivos  and  not  mortis  causa  where  it  was  made  by 

donor  irrevocably 1.  85 

cases  in  this  country  where  the  law  as  to  gifts  mortis  causa,  most 

correctly  stated i.  86 

personal  property  and  choses  in  action  generally  good  subject  of  1.  86 
except  donor's  chose  in  action  not  perfected  by  payment  ...  i.  86 
the  delivery  of  gift  mortis  causa  may  be  to  donee  or  to  third  party 

for  him i.  87 

cases  holding  that  delivery  cannot   be  to  a  third  party  wrongly 

decided i.  87 

the  bailee  is  a  trustee  for  the  donee i.  87 


728  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

GIFT  — (CoM^m  wee/). 

the  postponing  the  taking  effect  of  gift  irrevocably  until  donor's 

death  is  implied  by  the  gift i.  87 

but  the  delivery  must  be  made  either  to  donee,  or  a  third  person 

for  him,  during  donor's  life i.  87 

a  direction  by  the  donor  to  a  third  person  to  deliver  at  his  death, 

without  delivery  to  third  person,  not  good  delivery     ....         i.  87 

the  third  person  not  donee's  agent,  but  trustee i.  87 

acceptance  by  donee  presumed  where  not  repudiated      ....         i.  87 

right  of  revocation  always  implied  in  gift  mortis  causa,  but  not  so 

in  gift  inter  viros i.  87 

New  Brunswick  case  of  Earle  v.  Botsford  also  badly  decided  on 
ground  that  delivery  of  gift  mortis  causa  to  third  party  for 
donee  not  good i.  88 

English  case  relied  on  holds  no  such  doctrine,  and  misunderstood 

by  the  New  Brunswick  court i.  88 

no  delivery  of  subject-matter  to  any  one  in  that  case      ....         i.  88 

numerous  cases  cited  and  stated,  decided  in  England  and  America 

showing  such  delivery  good i.  87,  88-91 

complete  failure  of  justice  by  errors  in  New  Brunswick  case   .     .         i.  91 

gift  may  be  from  husband  to  wife  where  clear  intention  to  create 

separate  estate  in  her,  and  where  not  in  fraud  of  husband    .     .       i.  225 

in  such  case  where  no  third  person  interposed  as  trustee,  husband 

becomes  trustee i.  225 

wife  may  loan  or  sell  her  separate  property  to  her  husband,  under 
Married  Women's  Acts,  or  constitute  him  her  agent  to  manage 
it  for  her,  but  a  gift  of  it  to  him  will  not  be  presumed     ...       i.  235 

in  Alabama,  husband  might  by  gift  invest  wife  with  separate 
estate  in  her  earnings  without  fraud,  except  as  against  existing 
creditors,  or  he  may  bestow  his  labor  on  her  separate  property      i.  246 

gift  from  patient  to  medical  attendant  of  promissory  note  set 

aside  on  ground  of  fiduciary  relations i.  451,  452 

onus  of  establishing  gift  where  fiduciary  relations  exist  is  on  party 

receiving  the  gift i.  452 

GUARDIAN   AND   WARD. 

where  parent  allowed  for  maintenance  of  his  child  out  of  the 
latter 's  separate  estate,  such  allowance  should  be  made  as 
guardian  under  proper  authority i.  117 

step-father   appointed   guardian   to    his    step-son,    allowed    for 

latter's  maintenance  both  before  and  after  appointment       .     .       i.  117 

where  infant  ward  endorsed  stock-certificates  to  enable  her  guar- 
dian to  sell  them,  she  avoided  the  sale i.  123 

where  lunatic's  incapacity  known,  his  guardian  recovered  back 

property  exchanged  without  making  restitution i.  139 

parties  dealing  with  guardian  of  insane  persons  cannot  hold  guar- 
dian liable  personally i.  140 

HUSBAND   AND   WIFE.     (See  Married  Women.) 
HYPOTHECATION.     (See  Bottomry  Bonds;   Evidence;  Lien; 
Shipmaster.) 

maritime  hypothecation  is  the  creature  of  necessity  and  distress       i.  278 
IDIOTS.     (See  Lnsanity.) 

law  relating  to,  much  the  same  as  it  is  to  lunatics i.  14.") 

idiots  defined  by  Coke  and  Bacon i.  145 


ANALYTICAL   INDEX.  729 

[References  are  to  both  text  aad  notes,] 

IDIOTS  —  {Continued). 

formerly  idiots  were  considered  so  only  ex  nativilale i.  145 

but  now  commissions  of  lunacy  more  widely  applied      ....       i.  lio 

those  born  deaf  and  dumb  were  formerly  considered  idiots,  but 
such  presumption  has  ceased,  and  where  manifesting  under- 
standing have  power  to  make  contracts i.  145, 146 

competent  as  witnesses,  where  having  proper  sense,  and  where 

can  be  communicated  with  by  writing  or  signs i.  140 

idiots'  contracts  before  inquest  found  voidable  and  not  void    .'    .       i.  146 

contract  cannot  be  rescinded  without  return  of  consideration  .     .       i.  146 

contract  of  father  to  pay  board  for  adult  idiot  son  inferred  from 

circumstances i.  146 

INCORPORATED  COMPANIES  IN  THE  UNITED  STATES. 
(See  CoHPORATiox;  Dikectors  of  Companies;  English 
Companies'  Acts;   Stockholders.) 

where  stockholders  are  made  liable  for  debts  of  company,  remedy 

under  the  statute  must  be  followed i.  373 

liability  is  creature  of  statute,  independent  of  which  no  common- 
law  liability  exists    ." i.  373,  374 

liability  of  purchaser  of  bank  shares  to  vendor  for  payment  of 
claims  against  bank  governed  by  their  contract,  and  does  not 
exist  under  banking  act i.  374 

outside  of  statute,  no  lien  by  seller  to  company  on  railroad  as 

against  mortgagees i.  374,  375 

subsequent  creditors  not  allowed  to  impeach  prior  executed  con- 
tract with  company i.  375 

where  transfer  of  stock  to  purchaser  is  informally  made,  subse- 
quent purchasers  thereof  with  knowledge,  take  only  the  rights 
of  their  assignors i.  375 

directors  in  acting  as  aboard  must  do  so,  and  not  act  individually      i.  375 

Redfield,  C.  J.'s  view  is  otherwise i.  375,  376 

his  view  not  sustained  by  authority,  and  is  opposed  to  principle  i.  376-379 

when  acting  judicially  they  must  act  together,  when  acting  minis- 

teriaUy  this  not  necessary 1.  378 

nor  when  the  directors  are  not  officially  acting  as  directors  but 

as  agents  of  the  company i.  378 

held  in  England  that  two  justices  acted  together  judicially  where 

both  present  at  final  act i.  379 

deed  held  invalid  where  executed  by  trustees,  but  to  which  their 

secretary  fraudulently  affixed  seal i.  379 

where  pui'chaser  of  stock  only  liable  on  register  of  transfer,  delivery 
of  power  to  transfer  to  president  of  company  as  vendee  and  not  as 
president,  does  not  relieve  vendor  from  liability  as  stockholder  i.  376-379 

stockholder  is  estopped  from  denying  liability  as  to  creditors 

while  registered  as  stockholder    ...         i.  379 

even  though  he  has  sold  his  stock  and  enabled  purchaser  to  have 

transfer  made i.  379 

but  where  sale  has  been  duly  made  and  seller  has  done  all  in  his 

power  to  eifect  transfer,  his  liability  ceases i.  379,  380 

as  a  deed  is  presumed  to  be  registered  when  delivered  for  that 

purpose  to  the  proper  officer i.  380 

but  attaching  creditors  cannot  take  advantage  of  want  of  transfer 

where  bond  fide  sale  has  been  made i.  380 


730  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

INCORPORATED   COMPANIES   IN   THE   UNITED   STATES  — (Con- 
tinuecl). 

where  not  otherwise  enacted  transfer  good  at  place  of  owner's 

domicile,  good  everywhere i.  380,  381 

corporation's  obligations  not  impaired  by  dissolution     ....       i.  381 

right  of  action  is  given  in  United  States  to  stockholders  to  en- 
force rights  where  directors  fail  to  act i.  381 

but  such  failure  must  be  real  and  persistent i.  381 

where  power  is  in  manager  to  control  mine,  this  implies  that  such 

power  is  subject  to  reasonable  regulations i.  381 

a  subscription  for  stock  by  a  municipality  is  suflBcient  where  com- 
pany is  duly  notified  and  acts  thereunder i.  381,  382 

parties  purchasing  negotiable  securities,  with  notice  of  suit  as  to 

their  validity,  must  abide  result  of  suit i.  382 

(See  Lis  Pendens.) 

where  transfer  of  stock  sought  to  be  enforced,  company  as  well 

as  seller  must  be  made  party  to  the  action i.  383-385 

where  assignee  of  insolvent  stockholder  not  liable  for  calls,  in- 
demnity to  him  by  holder  of  bonds  of  company  received  from 
company  does  not  make  holder  liable  as  stockholder,  nor  pre- 
vent him  from  enforcing  bonds  against  other  stockholders   .    i.  385,  386 

as    bond  fide  purchasers  for    value,  their  rights   remain  intact 

against  stockholders i.  386 

legislative  authority  exists  in  the  States  to  empower  municipali- 
ties to  fix  prices  of  water,  gas,  etc i.  386 

held,  under  Banking  Act  of  1864,  that  shareholders'  liability  con- 
tinues wliere  to  escape  liability  fraudulent  transfer  is  made  to 
indigent  transferee i.  387 

subscriber  for  stock  is  liable  for  unpaid  subscription  to  company, 

and  not  to  its  creditors i.  388 

where  bank  loans  on  stock  are  prohibited,  but  no  penalty  im- 
posed, after  contract  for  such  loan  is  executed  only  govern- 
ment can  urge  prohibition i.  388 

stockholders  are  estopped  from  repudiating  liability  after  accept- 
ing stock  and  receiving  dividends  for  years  .......       i.  389 

where  stock  of  bank  is  made  subject  to  debts  of  holder,  bank  may 
lose  its  lien  by  waiver  through  acts  of  its  cashier,  in  transfer 
of  stock i.  389,  390 

principal  officer  present  at  bank  presumed  to  have  authority  to 

permit  transfers  of  stock i.  389 

special  assumpsit  against  corporation  lies  for  improperly  refusing 

to  make  transfer  of  stock i.  389 

stock  sold  by  broker  to  president  of  bank,  not  authorized  to  buy 
stock,  seller  not  knowing  to  whom  sold,  and  without  fraud, 
passes  from  seller i.  392,  393 

how  transfers  of  stock  are  made i.  393 

corporation  impropeiiy  refusing  to  register  transfer  can  be  com- 
pelled to  do  so i-  393 

where  party  buys  from  an  agent  specific  shares  of  stock,  acknowl- 
edging receipt  and  paying  on  account,  and  comj)any  accepts 
him  as  a  stockholder,  act  of  agent  is  ratified  and  the  party  is 
bound  as  a  stockholder 393,  394 

difference  between  this  case,  and  where  a  party  merely  makes  an 

application  for  shares i-  394 


ANALYTICAL   INDEX.  731 

[References  are  to  both  text  aud  notes.] 

INCORPORATED   COMPANIES   IN   THE    UNITED   STATES  — (Con- 

tinued). 
under  U.  S.  Banking  Act  of  1864,  and  similar  statutes,  stock- 
holders in  insolvent  companies  not  liable  for  deficiencies  of 

other  stockholders i.  394 

though  proceedings  against  stockholders  for  liability  are  usually 
in  equity,  suit  at  law  will  lie  where  amount  of  indebtedness  is 

fixed i.  395 

suits  on  coupons  maintainable  independent  of  the  bonds    ...       i.  395 
statutes  of  limitation  as  to  them  run  from  the  time  they  are  due, 

without  reference  to  the  bonds i.  395 

an  agreement  by  one  company  to  pay  the  bonds  of  another  gives 

the  holder  no  action  in  his  own  name i.  395 

where  stock  is  transferred  to  one  even  though  as  a  security  or 

pledge,  he  is  liable  as  stockholder i.  395,  396 

holders  of  bonds  may  be  charged  with  notice  of  their  invalidity, 
where  they  have  not  been  duly  issued,  contain  unfilled  blanks, 

overdue  coupons,  etc i.  396,  397 

possession  of   coupons  uncancelled  raises  presumption  of  their 

non-payment i.  400 

as  to  fraud  and  irregularities  in  issue  of  corporation  bonds  and  stock      1.  401 
assignee  in  bankruptcy  of  corporation  represents  both  the  com- 
pany and  creditors i.  401 

stock  as  against  him  cannot  be  repudiated  for  such  fraud  as 

might  be  against  the  company  itself i.  401 

presumption  as  to  ownership  of  stock  from  name  being  on  books, 

receipt  of  dividends,  etc i.  402 

transfer  of  stock  wrongly  made  set  aside i.  402 

transfer  of  stock  to  one  as  collateral  security  makes  the  transferee 

liable  as  stockholder i.  403 

unpaid  subscriptions  of  stock  not  ordinary  indebtedness,  and  not 

subject  of  set-off i.  403 

subscribers  for  stock  liable,  though  change  in  organization,  etc., 

of  the  company i.  403 

where  sale  of  corporation  property  made  by  mortgagees  aud  ma- 
jority holders,  sale  will  not  be  set  aside  without  these  being 

made  parties  to  suit i.  404 

sale  and  assignment  of  stock  when  fair  not  set  aside  for  hardship      i.  404 
where  notice  of  trust  on  face  of  stock-certificates  purchasers  are 

affected  by  the  trust i.  405 

where  notice  of  trust,  purchaser  is  put  on  inquiry  as  to  its  nature       i.  405 
bond   fide  purchasers   of    railway   bonds   improvidently  issued, 

protected i.  405 

railway  certificates  not  negotiable  as  to  jwior  equities    ....       i.  406 
assets  of  corporation  in  hands  of  stockholders  are  funds  to  pay 

the  creditois i.  406 

stockholder  estopped  by  his  own  act  from  denying  validity  of 

bonds  guaranteed  by  corporation i.  406 

and  liable  to  creditors  though  by  pi-ompt  action  he  might  have 

had  stock  transaction  set  aside i.  406 

INDEBITATUS   ASSUMPSIT.     (And  see  Action;  Bill  or  Note.) 
in  what  cases  it  lies,  and  in  what  cases  it  will  not  lie,  on  an  ex- 
change of  goods i.  11-14 


732  ANALYTICAL    INDEX. 

(References  are  to  both  text  and  notes.] 

INDEBITATUS   ASSUMPSIT  —  {Continued). 

where  there  is  a  coutract  as  to  price  the  terms  of  the  contract 

govern,  though  the  action  be  in  indebitatus  assumpsit  ....         i.  13 

■will  not  lie  as  for  goods  sold  and  delivered,  where  goods  have  been 

lent  and  other  goods  are  to  be  returned  for  them i.  13 

but  it  will  lie  where  goods  are  sold  at  a  price  to  be  paid  for  in 
other  goods,  or  to  be  paid  for  by  a  note  or  bill,  if  the  payment 
for  the  goods  delivered  is  not  received,  or  if  the  note  or  bill  has 
not  been  given,  and  the  term  of  credit  has  expired     ....         i.  13 

on  principle,  where  a  price  has  not  been  fixed,  a  quantum  valebal 

count  for  the  value  will  he i.  14,  20 

where  contract  remains  executory,  the  declaration  must  be  on 

the  special  contract i.  14,  20 

indebitatus  assumpsit  or  "  book  account "  held  to  lie  where  a  specific 

price  was  agreed  on  between  the  contracting  parties  ....         i.  17 

count  for  money  had  and  received  lies  where  money  paid  with 

total  failure  of  consideration i.  98 

where  bailee  has  power  to  elect  to  convert  bailment  into  sale,  as- 
sumpsit for  goods  sold  and  delivered  lies  from  time  of  election       i.  100 

where  contract  between  railway  company  and  construction  com- 
pany set  aside  for  fraud,  directors  of  the  former  being  mem- 
bers of  the  latter,  held  that  the  latter  could  recover  against 
the  former  on  quantum  meruit,  but  not  under  the  contract   .    i.  301,  302 

assumpsit  lies  against  corporation  on  parol  executed  contract  for 

necessary  goods  and  works i.  317,  318 

indebitatus  assumpsit  for  fixtures,  as  for  goods  sold  and  delivered, 

does  not  lie  by  one  who  affixes  them  to  the  freehold  .     .     .   ii.  243-247 

nor,  by  the  owner  of  the  house  (where  affixed)  selling  them  to  an 

incoming  tenant ii.  247-250 

but  it  has  been  held  to  lie  where  the  sale  has  been  made  by  the 

tenant  to  the  landlord ii.  250,  251 

as  it  will  be  sustained  for  crops  of  wheat,  hay,  and  corn     .     .     .      ii.  251 
INFANTS.    (See  English  Companies'  Act;  Necessariks;   Par- 
ent AND  Child;  Ratification  ;  IIescission;  Void  and 
Voidable.) 

can  legally  contract  for  necessaries  to  bind  themselves  ....       i.  109 

infant's  contracts  not  absolutely  void,  but  voidable  only  at  his 

election i.  110 

plea  of  infancy  can  only  be  pleaded  by  infant,  not  by  adult  con- 
tracting Mith  him i.  110 

in  England,  by  statute,  infant's  contract  for  goods  not  neces- 
saries void,  and  cannot  be  ratified i.  110 

may  contract  for  necessaries,  though  having  an  income  ....       i.  110 

question  for  jury  whether  articles  purchased  are  reasonable  under 

the  circumstances 1.  110 

infant  liable  under  implied  contract,  for  necessaries  for  wife  and 

infant  child,  where  adult  would  be  so  liable i.  IID 

Benjamin  states  the  rule  too  widely i.  Ill 

where  adult  not  liable  for  necessaries  supplied  his  minor  child, 

infant  not  so  liable i.  Ill 

parent  not  so  liable  unless  goods  supplied  with  his  assent  or  by 
his  authority ;  such  liability  not  implied  merely  from  the 
relationship i.  110-116 


127 
127 


129 
130 


132 
132 
133 
133 
133 


133 
133 


ANALYTICAL    INDEX.  733 

[References  are  to  both  text  and  notes  ] 
IXFANTS  —  (Continued). 

conflicting  authorities  on  the  subject  considered i.  110-116 

infant  widow  bound  by  her  contract  for  her  husband's  funeral 

expenses i.  117 

infant  husband  liable  for  his  wife's  ante-nuptial  debts  ....       i.  117 

where  infant  ward  indorsed  stock  certificates  to  enable  guardian 

to  sell  them,  held  she  could  revoke  the  sale i.  123 

Infant's  Relief  Act  in  England  applies  to  contracts  of  marriage, 
and  requires  new  promise  after  majority  to  bind  infant ;  ratifica- 
tion of  old  promise  not  sufficient 

question  whether  new  promise  or  ratification,  for  the  jury      .     . 

if  infant  retain  property  purchased  under  a  plea  of  infancy,  he 
cannot  avoid  paying  for  it 

nor  plead  infancy  as  defence  to  a  note  for  it 

infancy  is  bar  to  an  action  for  breach  of  instructions  as  super- 
cargo      

but  not  bar  to  an  action  of  trover 

but  may  be  given  in  evidence  to  show  nature  of  act 

infant  liable  in  trover,  although  goods  delivered  under  contract  . 

infant  wilfully  taking  another's  goods,  liable  in  trover  .... 

liable  for  wilful  torts,  and  for  damages  for  frauds  committed  by 
him 

but  his  fraudulent  representation  will  not  give  validity  to  his 
contract 

in  this  country  held  liable  for  fraudulent  misrepresentation  of 
being  of  age 

disability  to  contract  does  not  protect  his  fraud 

in  England,  at  law  not  liable  for  a  fraudulent  representation  that 
he  is  of  age 

but  there  in  equity  and  bankruptcy  liable 

infancy  no  defence  to  an  action  for  money  obtained  by  falsehood 
and  fraud 

American  decisions  at  law  and  English  decisions  in  equity  and 
bankruptcy  more  consistent  with  principle  as  to  infant's  lia- 
bility for  fraudulent  representation  than  English  decisions 
at  law i.  134,  135 

infant  cannot  have  contract  cancelled  and  retain  what  he  has 

received i.  134 

then,  on  principle,  when  relying  on   infancy  in  case  of  fraud, 

other  party  has  right  to  restoration i.  134,  135 

many  of  the  cases  in  England  hold  that  infant  is  liable  in  actions 
ex  delicto,  though  not  in  actions  ex  contractu,  contrary  to  some 
of  the  recent  cases i.  135 

English  and  American  authorities  examined i.  133,  135 

name  of  an  infant  not  good  as  ultimate  purchaser  under  English 

Companies'  Acts i.  323 

factors  liable  to  vendors  for  indemnity  where  furnishing  name  of 

infant  transferee i.  346 

infant,  for  laches  after  coming  of  age,  held  liable  as  contributory 

for  stock i   373 

but  not  liable  where  winding-up  commences  before  he  attains 

majority i.  373 


133 
133 


133 
133 


134 


734  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

INNOCENT  PARTIES.      (See  Municipal  Corporation  Trans- 
actions; Note  or  Bill.) 

one  of  two  suffering,  rule  as  to,  applied  to  improper  filling  up  of 

blanks  in  negotiable  paper i.  397,  616 

negotiable  paper,  when  not  good  even  in  hands  of  innocent  third 

parties i.  397-400 

where  rights  of  innocent  third  parties  intervene,  a,  cestui  que  trust 
may  be  unable  to  rescind  a  transaction  which  he  might  have 
set  aside  as  between  the  trustee  and  himself i.  4.56 

rule  as  to  innocent  parties  has  no  application  to  party  taking  bill 
of  lading  from  fraudulent  shippers  where  no  goods  received 

by  ship  or  railway ii.  29 

(See  Railway  Freight  Receipts.) 
INSANITY. 

old  common-law  authorities  held  one  could  not  stultify  himself  .       i.  1-36 

unsoundness  of  mind  now  good  defence  where  other  contract- 
ing party  knew  of  it i.  137,  138 

but  where  fair  contract  made  with  lunatic  by  one  without 
knowledge  of  insanity,  and  the  parties  cannot  be  put  in  statu 
^uo,  the  contract  will  not  be  disturl)ed     .• i.  139 

various  definitions  furnished  which  are  not  considered  suflScieut 

to  meet  doubtful  cases i.  136 

delusion  said  by  Sir  John  NichoU  to  be  the  true  test      ....       i.  137 

lunacy  a  terra  of  general  import,  embracing  all  kinds  of  insanity 
or  unsoundness  of  mind  incapacitating  attention  to  ordinary 
business  of  life i.  137 

when  arising  from  old  age  is  senilis  dementia i.  137 

evidence  of  insanity i.  137,  138 

though  mind  be  impaired  by  age  or  disease,  acts  valid  if  party 

capable  of  transacting  ordinary  business i.  138 

when  lunacy  once  established,  burden  to  show  act  done  in  lucid 

interval  on  party  claiming  through  lunatic    ....      i.  138,  144,  14.t 

where  no  evidence  of  knowledge  of  insanity,  contract  will  not  be 

set  aside  except  for  imposition i.  138 

imposition  in  this,  as  in  other  cases,  shows  fraud i.  138 

where  knowledge  of   insanity  and  fraudulent  advantage  taken, 

contract  invalidated  for  fraud i.  138 

where  party  notoriously  insane,  restitutio  ad  integrum  only  applies 

so  far  as  lunatic  benefited ;       i.  138 

negotiable  paper  fraudulently  obtained  from  lunatic  held  void, 

even  in  hands  of  innocent  purchaser  without  notice  ....       i.  139 

absence  of  knowledge  of  insanity,  as  well  as  fairness,  required  to 

sustain  contract  with  lunatic i.  139 

where  want  of   capacity  known,   lunatic's   guardian   recovered 

property  exchanged  without  restoring  consideration  ....       i.  139 

courts  of  equity  will  under  some  circumstances  set  aside  con- 
tracts made  with  persons  of  weak  minds i.  139 

but  where  the  other  party  acted  innocently,  the  contract  will  not 

be  set  aside  unless  parties  can  be  put  in  statu  quo       ....       i.  139 

executed  contracts,  fair  and  with  innocent  parties,  have  fre- 
quently been  sustained i.  139,  140 

even  where  the  lunatic  has  derived  no  benefit  from  the  trans- 
action     i.  140 


ANALYTICAL   INDEX.  735 

[References  are  to  both  text  and  notes.] 

INSANITY  —  (Continued). 

but  transaction  with  lunatic  will  not  be  upheld  where  innocent 

party  has  not  been  damnified i-  140 

to  vitiate  contract  with  lunatic  sufficient  knowledge  in  other  of 

incapacity  must  exist i.  141 

fair  dealing  with  one  not  known  to  be  insane  sustained  as  a  deci- 
sion of  necessity i-  141 

evidence  of  general  reputation  of  insanity  inadmissible  to  prove 

knowledge i-  141 

lunatic's  conveyance  to  innocent  party  refused  to  be  set  aside 

though  executed  subsequently  to  inquisition  of  lunacy  found  .  i.  141 
executory  contracts  made  by  lunatics  will  not  be  enforced  .  .  i.  142 
and  executed  contracts,  not  for  necessaries,  will  sometimes  be 

rescinded i-  142 

where  consideration  inadequate,  slight   evidence  will  establish 

imposition i.  142 

extreme  weakness  of  intellect  sufficient  ground  for  setting  aside 

lunatic's  contract  when  made  on  insufficient  consideration  .     .       i.  142 

lunatic's  contract  voidable,  and  not  void i-  142 

may  contract  for  necessaries  both  before  and  after  inquisition  of 

lunacy,  and  with  one  having  knowledge  thereof i.  142 

also  liable  for  necessaries  furnished  his  wife  during  his  lunacy  .       i.  143 

liable  for  costs  incurred  for  his  benefit i.  143 

though  he  may  avoid  his  express  contracts,  he  cannot  those  im- 
plied by  law,  as  necessaries  for  his  wife i.  143 

held  liable  in  equity  for  money  supplied  wife  during  his  lunacy,  and 

expended  for  necessaries,  though  she  had  a  separate  income  .  i.  143 
power  to  wife  to  bind  her  lunatic  husband  for  necessaries,  does 

not  exist  when  they  are  furnished  by  him i-  144 

to  establish  lucid  interval,  restoration  of  mind  sufficient  to  judge 

of  act  must  be  shown i-  144 

not  necessary  that  the  party  should  possess  same  ability  as  be- 
fore insanity i.  144 

mere  delusion  insufficient  to  avoid  act  unless  such  act  affected  by 

the  delusion i-  144 

where  party  capable  of  attention  and  application,  weakness  of 

mind  and  forgetfulness  not  sufficient  to  invalidate  contract     .       i.  144 

insanity  of  husband  revokes  agency  of  wife i.  190 

but' not,  without  notice,  to  those  to  whom  he  has  been  held  out 

as  agent i-  190 

INTENTION   OF   PARTIES,  (See  Principal  and  Agent.) 

to  contract,  or  their  mutual  assent,  to  govern  in  construction  of 

contract  of  sale i.  7 

that  property  in  goods  shall  not  pass,  where  a  price  has  first  to 

be  agreed  on,  and  this  not  done i.  18 

no  property  passes  in  goods  concealed  in  other  goods  sold,  where 

not  the  intention  of  the  parties  that  the  property  in  the  hidden 

goods  should  pass i.  24 

to  constitute  sale  in  distinction  from  bailment,  in  former  must  be 

intention  to  pass  absolute  property  in  subject i.  92 

governs  in  construction  of  contracts i-  3(31 

and  equally  so  where  contract  made  by  a  home  agent  for  a  foreign 

principal,  as  in  other  cases i.  513-515 


736  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

INTENTION    OF   TXRTIES  — (Continued). 

and  so  as  to  whether  a  contract  made  by  a  party  is  made  as  agent 

or  as  principal i-  532,  533 

intent  of  the  parties  as  shown  by  the  facts  is  to  govern,  whether 
parties  stand  in  the  relation  of  principal  and  agent  or  as  vendor 

and  vendee i.  582 

INTOXICATING  LIQUOR  SALES. 

exchanging  liquor  for  goods  came  within  the  ilassachusetts  act 

of  1845 i.  10,  ll;ii.  271 

and  a  delivery  and  receipt  of  intoxicating  liquors  as  payment  for 

services,  is  a  "  sale  "  within  the  meaning  of  such  acts     ...         i.  11 

held  contra,  in  Indiana,  but    the  soundness  of  the  decision  is 

questioned i.  11 

(See  Barter.) 
JUS   DISPONENDI.     (See  Property  Passing.) 
KNOWLEDGE.     (See  Principal  and  Agent.) 

means  of  knowledge  not  equivalent  to  actual  knowledge  as  to  deal- 
ing with  agents,  etc i.  57G,  577 

LACHES.     (See  Estoppel;  Fraud;  Ratification;  Rescission.) 

by  unreasonable   delay  stockholders  of  company  will  lose  their 

right  to  attack  proceedings  of  company  for  fraud i.  297 

where  director  of  company  purchased  stock  deposited  with  com- 
pany as  security,  with  power  of  sale,  sale  held  good  where 
laches  by  depositor  after  full  knowledge i.  304 

■where  party  seeks  to  rescind  contract  he  is  bound  by  laches  for 
not  exercising  right,  on  obtaining  knowledge  that  would  enable 
him  to  do  so i.  313,  34s 

but  where  not  seeking  to  rescind  contract,  but  claiming  damages 
in  nature  of  action  for  deceit,  same  doctrine  as  to  laches  does 
not  ajiply,  but  the  Statute  of  Limitations  then  applies  as  to  time       i.  014 

where  stock  of  another  was  transferred  to  innocent  third  party  as 

mortgagee,  and  no  laches  by  owner  of  stock,  transfer  set  aside  i.  .327,  328 

stockholder  held  not  guilty  of  laches  where  company  and  himself 

await  result  of  other  suits i.  34s 

if  grounds  exist  for  vendee  setting  aside  transfer  of  stock,  unless 

he  act  promptly  he  will  be  concluded i.  372 

infant  for  laches  after  coming  of  age  held  liable  as  a  contributory 

for  stock i.  373 

bank  by  laches,  through  its  officers,  in  permitting  transfer  of  stock 

may  lose  lien i.  390 

as  transaction  between  parties  occupying  a  fiduciary  relation  is 
voidable  only  at  instance  of  cestui  que  trust,  whei'e  it  has  been 
adopted  and  approved  and  is  on  full  consideration,  laches  may 
prevent  its  being  set  aside i.  455 

delaying  in  electing  as  between  principal  and  agent  not  laches, 

where  principal  not  misled  to  his  injury  by  creditor        .     .     i.  519,  581 

a  government  is  not  responsible  for  the  laches  of  its  officers    .     .       i.  585 
LEX  LOCI  CONTRACTUS, 

does  not  govern  where  there  are  there  bad  decisions,  and  under  the 
same  system  of  law  as  in  force  by  the  law  of  the  forum  .     .    ii.  35.  171. 

182.  183 

where  bottomry  bonds  are  executed  for  repairs  by  master  of 
foreign  ship,  as  agent  of  necessity,  the  law  of  the  place  where 
ship  belongs  governs  the  nature  of  the  owner's  liability       .     .       i.  275 


ANALYTICAL   INDEX.  737 

[Refprences  are  to  both  text  and  notes.J 

LEX   LOCI   CONTRACTUS— (Co»/m«(?(/). 

principles  governing  bottomry  bonds i.  282 

interest  allowed  on  security  of  ship  by  instalments  in  effect  bot- 
tomry bonds    ....'.. i.  282,  283 

the  law  of  the  place  where  the  ship  belongs  governs  as  to  com- 
munication with  owner  of  cargo  before  hypothecation  of  it  by 

master  of  ship i.  283 

to  constitute  valid  bottomry  bond,  master's  authority  being  based 

on  necessity,  the  money  must  be  for  the  necessities  of  the  ship   i.  283,  384 
LIEN.     (See  Necessaries;  Ship-Masters.) 

vendor's  lien  not  preserved  whei-e  there  is  an  actual  sale  and  de- 
livery of  goods,  under  an  agreement  that  the  property  in  the 
goods  is  not  changed i.  9G,  97 

nor  when  such  agreement  is  colorable i.  97,  98 

is  a  mere  personal  right  of  detention,  diifering  from  pledge    .     .       i.  105 

and  cannot  be  transferred  to  another i.  105 

material-men  have  lien  on  foreign  ship  for  necessaries  or  supplies, 
or  where  ship  is  held  out  as  foreign,  and  supplies  are  furnished 
in  faith  thereof i.  273 

in  England  it  is  held  that  master  can  only  create  a  lien  on  ship 
by  bottomry  bond,  but  in  the  United  States  it  is  settled  that 
master  can  create  a  lien  on  ship  without  a  bottomry  bond  .     .       i.  279 

vessel,  in  the  United  States,  not  subject  to  lien  for  common  debt 
of  master  or  owner,  same  necessity  must  be  shown  as  would 
justify  bottomry  bond i.  280 

fact    alone   of    master    being  owner  does    not    justify   implied 

hypothecation i.  280 

rules  as  to  liens  and  implied  hypothecation i.  280,  281 

liens  against  a  ship  do  not  attach  when  she  is  sold  by  master 

under  necessity i.  281 

the  liens  are  attached  to  the  proceeds  of  the  ship i.  281 

where  a  lien  exists  for  supplies,  drafts  are  only  conditional  pay- 
ment, and  on  non-paymeTit  the  lien  can  be  enforced  ....       i.  282 

mortgagees  of  a  ship  are  entitled  to  payment  in  priority  to  ma- 
terial-men not  in  possession  so  as  to  give  them  a  lien       ...       i.  284 

maritime  lien  does  not  arise  in  a  contract  to  build  a  ship  or  to 

furnish  materials  therefor i.  287 

such  liens,  within  limits  named,  may  be  created  by  the  States' 

legislatures  in  this  country i.  287 

see,  as  to  enforcing  maritime  liens i.  287 

where  master's  agent  is  placed  in  possession  of  vessel  and  cargo 
for  purpose  of  saving  cargo,  and  does  so,  he  has  a  lien  thereon 
for  his  necessary  charges i.  287 

the  master  has  a  maritime  lien  for  his  expenditure  for  neces- 
saries, even  against  a  hnnCi  fide  purchaser  of  the  ship      ...       i.  290 

under  bill  of  lading  of  charterer,  as  owner  pro  hdc  vice,  shipper  has 

lien  on  the  ship  for  execution  of  the  contract      ....         .       i.  291 

and,  if  the  vessel  is  in  distress,  a  lien  against  vessel  may  be  cre- 
ated for  necessary  supplies  to  relieve  her i.  291 

bank  by  laches,  through  its   officers,  in  permitting  transfer  of 

stock,  may  lose  its  lien i.  390 

where  bank  refuses  to  transfer  stock  sold,  on  unfounded  claim  of 

lien,  bank  is  liable  to  seller 1.395 

VOL.  II.  47 


738  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 
LIE^  — (Continued). 

as  to  lien  to  a  State  on  railroad  enuring  to  bondholders.  ...  i.  41 5 
auctioneers  having  a  lien  on  goods  can  sue  in  their  own  names  .  i.  571 
factor's  lien  under  Factors'  Acts  for  advances  on  goods  consigned 

to  him i.  574 

where  an  agent  is  intrusted  with  goods  for  sale,  he  has  usually  an 

implied  lien  on  tliem  for  his  acceptances  against  thein    ...       i.  587 
liens   by  attachment  or  judgment  are  not  affected  by  the  sub- 
sequent ratification  of  previous  unauthorized  act  of  agent  in 

transferring  the  property i.  625 

ship's  lien  for  freight  and  charges  on  cargo  remains  after  being 
unloaded  and  discharged,  where  not  duly  received  by  con- 
signees   i.  635 

bankrupt  estate  of  factor  held  to  have  a  lien  for  his  advances  on 

goods  held  by  him i.  641 

lien  on  railroad  and  property  attaches  to  land  granted  the  company     11.  250 
notwithstanding  earnest   is   paid,  if  the  balance  on  the  goods 
bought  is  payable  on  delivery,  the  vendor's  lien  for  the  price 

continues li.  311 

if  vendor's  lien  attaches  to  the  whole  of  the  goods,  there  is  no  ac- 
ceptance and  actual  receipt  of  them  by  the  vendee  to  satisfy  the 

Statute  of  Frauds 11.  347,  348 

(See  AccF.PTANCE  ;  Actual  Receipt.) 
LIMITATIONS,  STATUTE  OF.     (See  Statute  of  Limitations.) 
LIS  PENDENS, 

duly  prosecuted  is  notice  to  purchaser,  and  binds  his  interest  by 

judgment  or  decree i.  382 

the  pendency  of  the  suit  Is  notice 1.  382 

litigating  parties  not  affected  by  transfer  during  trial  ....  1.  382 
these  principles  applied  in  this  country  to  sales  of  both  real  and 

personal  property 1.  382-384 

same  doctrine  held  in  English  cases 1.  383,  384 

but  does  not  apply  to  purchasers  of  negotiable  securities,  unless 

they  receive  actual,  and  not  constructive  notice  .  .  .  .  i.  382,  383 
county  bonds  i>urchnsed  pendente  lite  held  affected  by  constructive 

notice,  on  ground  that  they  are  not  negotiable  securities  .  .  i.  383 
held  to  apply  to  choses  in  action,  as  bond  and  mortgage  ...  i.  383 
contended  in  an  English  case  and  doubt  expres.sed  in  an  old  New 

York  case,  as  to  the  doctrine  applying  to  personal  property  .  i.  383 
but  on  authority  of  both  English  and  American  cases,  and  on 

principle,  it  clearly  does 1.  382-385 

basis  of  the  doctrine,  which  is  as  applicable  to  personalty  as  to 

realty,  is  that  seller  can  give  no  better  title  than  he  has  ...       1.  385, 
has  no  application  to  municipal  bonds  which  are  negotiable    .     .       1.  434 
MARRIAGE,  RIGHTS  BY.     (See  Married  Women.) 
MARRIED  WOMEN.     (See  Agent  of  Necessity.) 

lunatic  liable  for  necessaries  furnished  his  wife  during  lunacy      .       i.  143 
and  her  power  as  husband's  agent  to  obtain  supplies  continues 
after  insanity  of  the    husband,  dealing  with  innocent  third 

parties i-  143 

married  woman,  agent  of  necessity 1.  143 

though  lunatic  may  avoid  his  express  contracts  he  cannot  those 

Implied,  as  for  necessaries  to  wife i.  143 


ANALYTICAL   INDEX.  739 

[References  are  to  both  text  and  notes  ] 

MARRIED   WOME^  — (Continued). 

in  equity,  proof  allowed  for  money  to  wife  during  her  husband's 
lunacy,  applied  for  necessaries,  though  having  a  separate  in- 
come       i.  143 

but  where  sufficiently  supplied  by  husband  for  necessaries,  hus- 
band not  liable i.  143 

Married  Women  living  with  their  Husbands. 

married  women  at  common  law  are  incapable  of  making  con- 
tracts      i.  149 

such  contracts  absolutely  void,  not  voidable,  and  therefore  cannot 

be  ratified i.  149 

as  far  as  she  can  contract  she  binds  her  husband,  not  herself,  at 

common  law i.  149 

her  personalty  may  be  seized  in  execution  against  her  husband  .       i.  149 

where  not  a  "  public  or  free  trader  "  her  earnings  vest  in  her  hus- 
band       i.  150 

presumption  is  that  property  in  her  possession  is  property  of  her 
husband     


150 

when  wife  binds  husband  by  contract  she  does  so  as  his  agent  i.  150,  151 
this  agency  may  be  inferred  when  wife  lives  with  her  husband  .  i.  151 
but  not  when  purchases  are  of  an  extravagant  nature  ....  i.  151 
under  Alabama  code,  property  purchased  by  proceeds  of  wife's 

separate  estate  vests  in  her  as  against  her  husband's  creditors  .       i.  151 
contracts  between  husband  and  wife  void  at  common  law       .     .       i.  151 
where  wife  buys  on  credit  of  husband  the  question  is  as  to  ex- 
press or  implied  authority  to  bind  him,  —  whether  agency  has 

been  created i.  152 

■where  husband  supplies  necessaries,  implied  power  of  wife  to  con- 
tract for  them  ceases i.  152,  1.57 

husband  bound  to  provide  wife  necessaries i.  153-157 

wife  no  implied  power  to  bind  husband  except  for  necessaries  .  i.  1.54 
whether  husband  bound  or  not  on  wife's  contract  for  necessaries 

depends  on  supply  or  not  by  husband        i.  152-158 

burden  of  proof  that  articles  supplied  are  necessaries  is  on  party 

supplying  them i.  158 

husband  has  right  to  supply  family  reasonably  according  to  his 

own  view i.  158 

legal  implication  that  necessaries  purchased  by  wife  are  on  account 

of  husband      . i.  158 

essence  of  liability  of  wife's  separate  estate  for  necessaries  is 

their  being  furnished  on  her  credit  and  request i.  158 

servant  employed  by  wife  presumed  to  be  for  husband  .     ...       i.  159 

Married  Women  as  Agents  of  Necessity i.  159-195 

Parsons'  mistake  as  to  their  inability  to  bind  husband  by  con- 
tracts for  necessaries i.  159 

distinction,  as  to  agreeing  mind,  between  the  husband's  express 

and  implied  contracts i.  159 

where  compelled  by  husband's  misconduct  to  leave  him,  she  can 

bind  him  for  necessaries i.  159,  160 

this,  not  only  without  "  agreeing  mind  "  of  husband,  but  against 

his  express  dissent i.  160 

she  becomes  agent  of  necessity,  —  principles  governing  stated  i.  160-162 
results  from  marital  rights i,  161 


740  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 
MARRIED   WOMEN  — (CW^inuer/). 

causes  creating  such  agency i.  161, 162 

onus  is  on  party  supplying  goods  to  sustain  agency i.  162 

nature  of  husband's  liability 1.  102 

where  separation  voluntary,  husband  liable i.  162 

unless  furnishing  support i.  103 

on  separation,  ordinary  agency  ceases i.  163 

notice  of  such  separation  from  husband  not  necessary  except  to 

previous  dealers  with  wife  as  husband's  agent i.  163 

party  supplying  goods  must  justify  wife's  abandonment,  and  show 

that  articles  are  necessaries i.  163 

exceptional  cases  contra  not  well  decided i.  163-106 

where  necessity  ceases  agency  of  necessity  ceases  .  .  •.  .  i.  166-171 
what  will  justify  wife  leaving  and  remaining  from  her  husband  i.  170, 171 
Bishop  incorrect,  that  notice  to  return  will  not  abridge  wife's 

credit i.  171 

Emery  v.  Emery  on  this  point  wrongly  decided i.  171 

offer  of  husband  in  good  faith  to  provide  for  wife  ends  agency  of 

necessity i.  173 

io«a^(/es  of  offer  question  for  jury i.  173 

Horwood  v.HeSer,  holding  husband's  misconduct  no  justification 

for  wife  leaving  him,  unsound i.  173-177 

Emery  v.  Emery,  though  even  more  unphilosophical,  not  repu- 
diated by  text-writers  .     .     .    ' i.  177 

cases  contrary  to  holding  in  both  Horwood  c.  Heffer  and  Emery 

V.  Emery i.  178-187 

where  alimony  allowed  for  support  of  wife  and  children,  husband 

not  further  liable i.  184-186 

where  wife  reasonably  justified  in  remaining  separated  from  hus- 
band, be  continues  liable  for  her  sujiport  though  offering  to 

take  her  back i.  187 

Emery  c.  Emery  never  followed  in  this  country i.  188 

where  husband  deserts  his  wife  and  in  good  faith  seeks  a  recon- 
ciliation, if  wife,  without  good  cause,  refuses,  her  agency  of 

necessity  ends i.  188 

his  liability  governed  by  necessities  of  case  and  ends  with  the 

necessity i-  188 

separate  maintenance  denied  to  wife  in  Illinois  where  bond  fide 

offer  of  husband  to  support  her i.  189 

in  California,  where  wife  abandons  husband,  he  is  not  liable  for 
her  support  until  she  offers  to  return,  unless  she  has  left  for 

his  misconduct i.  189 

nor  where  they  separate  by  agreement,  unless  part  of  agreement 

otherwise i-  189 

so  in  England,  held  where  separation  voluntary  under  agreement, 

husband  liable  only  by  its  terms i-  180 

insanity  of  husband  revokes  agency  of  wife i-  190,  191 

but  not,  without  notice,  to  those  to  whom  he  has  held  her  out  as 

agent i.  190,  191 

insane  husband  not  liable  for  necessaries  to  wife  or  for  repairs  to 
premises  by  her  directions,  any  more  than  if  sane,  where  he 

has  supplied  her  with  funds  for  such  purposes i.  192 

where  wife  would  be  disentitled  to  succeed  in  action  for  restitu- 
tion of  conjugal  rights,  she  has  no  agency  of  necessity    ...       i.  192 


ANALYTICAL   INDEX,  741 

[RefereDces  are  to  both  text  aud  notes.] 

MARRIED   ^V OMEN  — (Continued). 

party  supplying  deserted  wife  with  money  for  necessaries  can 

recover  against  husband  in  equity,  but  not  in  law       ....       i.  195 

Professor  Parsons'  view  that  this  is  unsettled,  not  sustained    .     .       i.  195 

the   law  ou   the   question   well   settled    both   in   England    and 

America i.  195-198 

equity  has,  in  some  cases,  granted  maintenance  to  wife,  but  the 

usual  remedy  is  in  spiritual  courts  for  alimony  ,     .     .     .     .    i.  198-20' 
Married  Women  binding  their  Separate  Estate. 

courts  of  equity  have  jurisdiction  over  separate  estates  of  man'ied 
women,  and  there,  and  not  in  law,  remedies  against  must  be 
sought i.  196,  197 

courts  of  law  recognize  no  power  in  married  women  to  con- 
tract, nor  generally  any  pi'operty  apart  from  husband      .     .    i.  198-200 

equity  acts  through  trusts,  and  in  respect  to  her  separate  estate 

treats  her  as  ajhne  sole i.  201 

her  bonds,  bills  of  exchange,  and  promissory  notes  payable  out  of 

her  separate  estate i.  201 

it  is  liable  also  for  her  general  engagement  contracted  on  the 

credit  of     ... i.  201,  202 

when  living  separate  from   her  husband,   liability  of  separate 

estate  more  readily  implied i.  202 

where,  and  where  not,  her  liabilities  take  precedence  over  her  ap- 
pointment under  power i.  203,  204 

when,  and  when  not,  her  separate  property  subject  to  restraint 

on  anticipation,  liable i.  204 

essence  of  her  liability  as  to  her  general  engagements  is  that  they 
are  made  on  the  credit  of  the  estate  possessed  by  her,  not 
hampered  by  restraint  on  anticipation i.  204,  205 

her  deed  of  separate  estate  binds  her  by  estoppel  as  feme  sole  .     .      i.  205 

Statute  of  Limitations  not  bar  against  claims  on  her  separate 
estate  for  money  for  necessaries i.  205 

where  she  trades  as  a  feme  sole,  her  husband  having  been  ban- 
ished or  having  abjured  the  realm  or  abandoned  her,  she  is 
answerable  for  her  debts i,  206 

where  husband's  absence  only  temporary,  her  powers  not  enlarged      i.  206 

assignment  by  husband  of  furniture  to  wife  for  her  separate  use, 
for  valuable  consideration,  is,  in  England,  within  Bills  of  Sales 
Acts,  and  requires  registration i.  207 

husband  may  make  settlement  on  his  wife  where  claims  of  exist- 
ing credits  not  impaired,  and  where  not  done  fraudulently  .     .       i.  208 

and,   as  an  equivalent  for  her  separate  property  used  by  her 

husband,  payment  to  her  as  to  any  other  will  be  sustained  .     .       i.  208 

ante-nuptial  contract  is  good  as  between  parties,  and  binding  on 

others  when  duly  registered i.  208 

and  property  continues  to  be  bound  when  removed  to  another 

State i,  0Q8 

Married    Women's  Property  Acts. 

status  of  married  women  materially  altered  by  modern  statutes    .       i.  209 

synopsis  of  such  statutes  in  England  and  in  this  country   .     .     i.  209-212 

such  acts  in  force  in  Provinces  of  Canada  outside  of  Quebec    .     .       i.  212 

a  very  complete  married  woman's  property  act  in  force  in  Nova 

Scotia i.  212 


742  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

MARRIED   WOMEN"  —  (  Continued). 

these  acts  contirra  principles  previously  in  force  in  equity  as  to 

married  women's  separate  property i.  213 

independent  of  such  acts,  in  equity,  married  women,  with  con- 
sent of  husbands,  could  carry  on  business  for  their  separate 
use  and  benefit ' i.  213,  214 

this  doctrine  held  in  both  England  and  America  .....    i.  213,  214 

a  fortiori,  she  can,  under  such  of  the  Married  Women's  Acts  as 

expressly  enable  her  to  do  so i.  214,  215 

the  English  acts  have  been  held  as  not  retrospective,  and  under 
the  act  of  1882  held  that  her  contract  would  not  bind  her  sub- 
sequently acquired  property i.  215 

in  this  country,  too,  it  has  been  held  that  the  acts  do  not  so  en- 
large the  liability  of  her  separate  estate  as  to  charge  it  with 
money  expended  by  her  received  from  her  husband     .     .     .    i.  215,  216 

in  England,  her  claim  in  bankruptcy  against  her  husband's  es- 
tate, except  for  money  not  lent  for  his  trade  and  business,  is 
postponed  until  claims  of  other  creditors  are  paid  in  full  .       i.  216 

property  acquired  by  a  married  woman  after  marriage  is  looked 
upon  with  suspicion,  which  has  to  be  overcome  in  contests  be- 
tween her  husband  and  his  creditors,  as  was  the  case  at  com- 
mon law     ...         i.  216 

property  purchased  by  her  on  credit  or  with  her  earnings  has 
often  been  subjected  to  levy  under  execution  against  her  hus- 
band       i.  216 

in  Mississippi,  a  mai-ried  woman  has  most  of  the  powers  and  lia- 
bilities, when  engaged  in  trade,  of  difeme  sole i.  217 

Her  Status. 

at  common  law  the  acquisitions  of  a  wife  accrued  to  the  husband 

became  liable  for  his  debts,  and  her  possession  was  his    ...       i.  217 

and  where  the  husband  gave  promissory  notes  as  trustee  for  his 
wife,  for  household  supplies,  as  the  wife  had  given  no  authority 
for  this,  her  separate  estate  was  held  not  liable i.  217 

courts  of  equity  early  interfered  for  protection  of  wife's  property 

as  that  of  a,  feme  sole i.  217 

•while  trustee  was  necessary,  where  husband  had  possession  he 

was  constituted  trustee  for  his  wife i.  218 

under  certain  conditions  courts  of  law  recognize  personalty  as 

belonging  to  herself i.  218 

where  a  separate  estate  is  in  her  in  personalty,  her  husband  can- 
not affect  her  proprietorship  or  rights i.  218 

such  separate  estate  may  be  established  by  acts,  conduct,  and 

words,  as  any  other  fact  m  paw i.  218 

or  from  long  control  over  it  by  husband's  acquiescence  ....       i.  218 

courts  of  law  as  well  as  equity  will  protect  such  an  estate,  even 
against  her  husband's  creditors,  where  it  has  been  so  treated 
that  he  has  not  obtained  credit  on  it i.  218 

separate  property  presumed  from  long  control  with   husband's 

acquiescence i.  218 

property  conveyed  to  married  women,  though  not  by  trust  deed, 
separate  property,  when  so  treated  by  husband,  even  against  his 
creditors i.  218,  219 

married  woman  held,  against  her  husband's  creditors,  to  have  title 


ANALYTICAL   INDEX.  743 

[References  are  to  both  text  and  notes.] 

xMARllIED   WOMEN  —  (CW^V/wer/). 

in  mowing  machine  obtained  witliout  fraud  by  sale  or  pur- 
chase, and  held  by  her  for  years  as  iier  property i.  219 

proceeds  of  money  brought  by  married  woman  from  another  State, 
being  her  separate  property,  and  so  held  by  agreement  with 
her  husband,  held  exempt  from  execution  against  husband       .       i.  219 

and  her  separate  property  so  brought  in  continues  to  be  protected 

irrespective  of  husband's  subsequent  assent i.  220 

but  where  not  so  impressed,    subsequent  consent   of   husband 

required i.  220 

evidence  that  wife  purchased  property  during  coverture  not  suffi- 
cient to  give  her  title i.  220 

unless  evidence  of  having  been  bought  with  her  separate  funds, 

violent  presumption  that  it  was  not  so i.  220 

presumption  of  title  from  possession  does  not  apply  as  between 

husband  and  wife,  their  possession  being  usually  joint  ...       i.  221 

Married  Women's  Acts  have  not  changed  this  rule i.  221 

(See  further,  Evidexck;  Pkksumption.) 

■while  in  Pennsylvania,  under  act  of  1848,  wife's  separate  property 
is  protected,  what  she  acquires  by  her  own  efforts  vests  in  her 
husband  as  at  common  law i.  222 

her  purchases  on  credit  of  her  separate  estate  protected  under 

that  act i.  223 

and  under  their  act  of  1872,  which  protects  her  earnings,  pre- 
sumption as  between  husband  and  wife  not  changed,  and  earn- 
ings from  business  transferred  by  husband  to  wife  and  carried 
on  by  him  as  her  "agent,"  held  his  and  not  hers i.  223 

whilst  married  woman  may  buy  goods  on  credit,  it  must  be  on 

credit  of  her  separate  estate,  and  burden  is  on  her  to  show  this        i.  223 

which,  where  she  has  such  separate  estate,  may  be  shown  by  cir- 
cumstances as  well  as  by  direct  proof i.  223 

so  long  as  she  establishes  the  fact i.  223 

Reduction  into  Possession. 

by  marriage,  personal  property  of  wife,  except  that  to  her  per- 
sonal use,  vests  in  husband,  as  do  future  acquired  choses  in 
possession i.  225 

to  make  husband  trustee  thereof  for  wife,  clear  evidence  required       i.  225 

where  suit  not  necessary  to  reduce  property  into  possession,  prop- 
erty is  reduced  into  possession  when  husband  at  his  will  can 
lawfully  take  it  into  his  possession i.  225 

possession  of  the  wife  is  possession  of  husband i.  225 

held  in  Georgia,  that  wife's  property  at  marriage  maybe  reduced 
into  possession  by  husband,  but  he  cannot  be  compelled  to  do 
so  by  creditors  or  others i.  226 

and  notwithstanding  statute  there,  may  still  reduce  her  property 

to  possession i.  220 

but  if  he  do  so  for  her,  as  her  estate,  may  secure  her  therefor 

even  as  against  creditors i.  226 

under  Pennsylvania  acts,  husband  acting  as  agent  for  his  wife  in 
investing  her  money  and  buying  and  selling  for  her  does  not 
transfer  property  to  him i.  226 

she  does  not  forfeit  right  of  property  because  property  in  their 

joint  possession i.  226 


744  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

MARRIED   WOUE'S  —  (Cotitinued). 

so  in  New  Hampshire,  proceeds  of  timber  sold  by  husband  off 
■wife's  separate  estate  to  pay  off  mortgage  thereon,  held  exempt 
from  attachment  against  husband i.  22G 

■where  husband  has  acted  as  agent  of  wife  in  buying  stock,  on  bill 
filed  to  set  aside  sale  for  fraud,  she  is  not  estopped  by  hus- 
band's act  in  paying  out  the  uiouey  while  subsequently  in  em- 
ployment of  the  company i.  227 

husband  may  be  agent  for  management  of  wife's  separate  property       i.  227 

but  this  must  not  be  used  as  fraudulent  device  to  cover  husband's 

own  transactions i.  227 

■when  fraud  charged,  the  trausaction  will  be  closely  scrutinized  by 

the  courts i.  227 

but  fact  that  husband  gives  his  services  to  wife  in  conduct  of  her 

separate  business  raises  no  presumption  of  fraud i.  227 

■wife  not  liable  where  husband  signs  negotiable  paper  with  wife's 

name,  without  proof  of  agency i.  228 

gambling  transactions  induced  by  hus])and  of  wife  set  aside  in 
New  Jersey,  and  broker,  with  knowledge,  decreed  to  return 
consideration i.  228 

wife  estopped  in  Michigan  from  claiming  not  to  be  a  partner  with 

her  husband,  where  by  appearance  holding  herself  out  as  such       i.  228 

but  not  estopped  from  asserting  the  fact  of  her  husband's  indebt- 
edness to  her i.  228 

Her  Separate  Property. 

statutes  recognizing  separate  existence  of  married  women  have 
changed  the  rule  of  the  common  law  based  on  legal  unity  of 
husband  and  wife i.  229 

under  such  statutes,  contracts  between  husband  and  wife  are  now 

sustained i.  229 

she  may  purchase  his  note  and  be  entitled  to  payment  therefor 

out  of  his  estate        i.  229 

and  an  assignment  of  leal  estate  to  her  in  payment  of  his  note 

without  fraud,  is  valid i.  229 

so  she  may  purchase  mortgage  on  his  property,  and  an  assign- 
ment of  it  to  her  does  not  extinguish  it i.  229 

she  can  sue  him  by  next  friend,  or  through  trustee  appointed  by 

court i.  229 

and  where  female  mortgagee  marries  mortgagor  her  right  of  ac- 
tion on  mortgage  not  extinguished 1.  230 

at  common  law,  as  in  Massachusetts,  there  can  be  no  valid  con- 
tract between  husband  and  wife i.  230 

in  Missouri,  a  married  woman's  savings  in  keeping  boarders  and 
■working  for  them,  with  consent  of  husband;  money  given  her 
by  her  father,  and  proceeds  of  land  vested  in  her,  held  to  be 
her  separate  property 1.  230 

in  Alabama,  can  hold  separate  property,  but  can  only  convey  it 
as  prescribed  b}'  the  act,  and  attempts  to  convey  otherwise  are 
nugatory i.  230 

a  married  woman  in  New  York  can  contract  as  to  her  separate 

estate  as  feme  sole i    230 

and  what  she  can  do  herself  she  can  do  by  an  agent,  which  her 
husband  may  be      ....  i.  231 


ANALYTICAL   INDEX.  745 

[References  are  to  both  text  and  notes.] 

MARRIED    \\OMET<J  —  (Co7i(iniml). 

she  may  have  such  a  community  of  interest  with  her  husband  as 

to  be  liable  for  his  fraud i.  231 

or  where  she  takes  a  benefit  under  his  false  representations,  acting 

as  her  agent,  she  is  affected  by  his  fraud i.  231 

where  a  married  woman  in  Pennsylvania  obtains  benefit  of  act 
she  can  trade  as  feme  sole,  with  respect  to  her  separate 
estate i.  231 

but  this  does  not  alter  the  rule  that  the  burden  of  proof  is  on  her 

to  show  ownership i.  232 

but  she  can  only  trade  when  possessing  separate  estate       ...       i.  232 

unless  under  act  giving  her  that  right,  in  case  of  drunkenness  or 

profligacy  of  husband i.  232 

property  exempted  from  execution  in  Iowa  may  be  sold  by  wife 

of  husband  who  absconds  and  leaves  family i.  232 

their  family  expenses  are  chargeable  against  both  husband  and 
wife,  who  may  be  sued  jointly  or  separately,  each  of  them  being 
personally  liable .     .     .    i.  232,  233 

subject  to  being  recorded,  wife  can  hold  and  use  separate  property 

in  Montana,  as  feme  5o/e,  exempt  from  husband's  liabilities      .       i.  233 

married  women  in  Minnesota  may  have  proceeds  from  keeping 

boarders,  husband  consenting i.  233 

married  women  can  make  promissory  notes  in  Indiana       ...       i.  233 

there  ability  to  contract  is  the  rule  and  disability  the  exception         i.  23-1 

her  representations  acted  on  bind  her  as  estoppels  in  pais,  where 

her  denial  would  operate  as  fraud i.  234 

but  not  by  representation  obtained  by  another  in  fraudulent  coUu- 

siou  with  her  husband i.  234 

except  as  to  negotiable  paper  in  hands  of  innocent  third  party 

without  notice i.  234 

in  Arkansas,  may  contract  and  assume  liabilities  as  to  her  sepa- 
rate estate i.  234 

under  such  statutes  her  property  is  protected  even  when  let  to 

her  husband  as  to  a  stranger i.  235 

may  sell  it  or  loan  it  to  him,  or  constitute  him  her  agent  to  man- 
age it  for  her,  but  a  gift  of  it  will  not  be  presumed     ....       i.  235 

in  Massachusetts,  washing  for  others  done  by  wife  being  pro- 
tected by  statute,  arrangement  made  for  it  with  her  husband 

held  as  made  by  him  as  his  wife's  agent i.  235 

Her  Contracts. 

in  Pennsylvania,  under  act  of  1848,  while  separate  estate  secured 

to  wife,  her  earnings  belonged  to  husband i.  235 

under  act  of  1872,  her  earnings  were  secured  to  her,  but  this  did 

not  give  her  the  power  to  contract  generally i.  236 

but  connected  with  her  separate  estate  she  can  sue  and  be  sued 

in  suit  against /eme  sole  trader,  husband  need  not  be  joined    . 

liable  for  labor  and  services  connected  with  her  separate  estate 

but  not  without  her  agreement  and  for  necessary  services  . 

under  acts  making  her  liable  for  debts  contracted  for  family  sup- 
port, liable  on  her  contract  for  funeral  expenses  of  her  mother, 
who  had  been  living  with  family i.  237 

but  not  for  supplies  furnished  for  her  son  and  his  family,  not  liv- 
ing with  her i.  237 


236 
i.  236 
i.  236 
i.  236 


746  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 
MARRIED   WOMEN  — (Co/i/in«ec/). 

cannot  recover  for  payments  made  when  under  disability  on  ac- 
count of  stock  purchases,  after  continuing  to  make  such  pay- 
ments after  disability  removed i.  237 

■  ability  to    contract    in    Indiana  the   rule,    and    disability  the 

exception i.  2^7 

her  promissory  notes  for  wearing  apparel  bind  her i.  237 

in  Xew  York  her  liabilities  on  contract  are  either  as  regards  her 

separate  estate  or  with  intention  to  charge  it i.  238 

but  she  is  estopped  from  repudiating  her  admitted  negotiable 
paper,  in  hands  of  innocent  party,  when  apparently  connected 
with  her  separate  business i.  238 

and  so,  in  Alabama,  she  is  estopped  from  denying  existence  of 

firm  in  which  name  she  had  obtained  credit i.  238 

but  where  statutes  vest  property  in  her  as  feme  sole,  but  do  not 
enable  her  to  trade,  she  is  not  liable  on  her  commercial 
contracts i.  239 

fraud  is  not  to  be  considered  where  married  women  have  con- 
tracted in  matters  beyond  their  power i.  239 

she  may  show  that  she  signed  promissory  notes  as  surety,  not 
connected  with  her  separate  estate,  even  where  she  can  con- 
tract for  purchase  of  property i.  239 

married  woman  not  liable  to  the  third  party  for  moneys  received  by 

her  from  her  husband  for  which  he  is  liable  to  such  third  party       i.  239 

married  woman    in  ^lissouri   has   the  Jus  di.<ponenJi  as  to  her 

separate  property,  as  feme  sole i.  239 

there  she  is  bound  by  her  promissory  note  or  deed  of  trust  for 

payment  of  her  purchases i.  240 

•where  married  woman  has  power  to  trade  as  well  as  hold  separate 
estate,  in  her  defence  as  to  her  promissory  notes  she  must 
negative  both  causes i.  240 

in  Oregon  her  contracts  may  be  enforced  against  her  as  though 

she  were  feme  sole i.  240,241 

married  woman  after  coverture  held  liable  for  consideration  re- 
ceived while  covert,  on  subsequent  promise  to  pay       ....       i.  241 
Her  Liability  independent  of  Contract. 

in  some  of  the  States,  as  in  Iowa  and  Oregon,  married  women 
are  made  liable  for  family  expenses,  in  absence  of  fraud,  with- 
out her  contract i.  241 

though  sold  individually  to  the  husband  and  for  his  promissory 

note i.  242 

and  where  jointly  in  possession  with  him  of  property  belonging 

to  another,  liable  to  action i.  242 

in   Illinois,  as   in  Oregon  and  Iowa,  wife  personally  liable  for 

family  supplies i.  243 

and  this  liability  is  not  limited  to  necessary  family  expenses    .     .       i.  243 

articles  that  are  family  expenses  within  the  meaning  of  the  act  i.  243,  244 

held,  under  a  similar  act  in  North  Carolina,  that  supplies  for  keep- 
ing a  boarding-house  not  within  the  act i.  244 

■where  statute,  as  in  Mississippi,  constitutes  husband  agent  for 
wife,  except  where  record  contra,  she  is  liable  under  his  con- 
tracts made  for  the  use  and  benefit  of  business  connected  with 
her  property i.  244 


ANALYTICAL   INDEX.  747 

[References  are  to  both  text  and  notes.] 
MARRIED    WOMEN  —  (Continued). 

burden  of  proof  is  on  those  dealing  with  her  husband  to  show 

such  use  and  benefit i.  245 

but  where  falling  within  scope  of  his  apparent  power  as  agent, 

wife  bound  notwithstanding  subsequent  misappropriation  .     .       i.  245 

limit  on  her  liability  in  Kansas i.  245 

where,  in  Tennessee,  husband  purchased  goods  for  promissory 
note,  in  name  of  his  wife,  held,  wife  repudiating  contract,  title 
to  the  goods  was  in  vendors,  but  other  goods  belonging  to  her 

not  chargeable  therefor i.  246 

in  Alabama,  husband  might  either  contract  with  his  wife  to  re- 
lease her  earnings,  or  by  gift,  except  as  against  existing  cred- 
itors, could  invest  her  with  the  property  in  them i.  246 

he  may  spend  his  labor  on  her  property  and  permit  his  wife  to 

labor  thereon i.  246 

the  voluntary  payment  by  a  woman  after  the  death  of  her  hus- 
band of  all  his  debts  but  one,  does  not  render  her  liable  to  pay 

that  one i.  246 

name  of  married  woman,  as  under  disability,  not  good  as  ulti- 
mate purchaser  under  English  Companies'  Acts '   323 

MEASURE   OF   DAMAGES.     (See  Action.) 

where  a  contract  for  the  sale  of  goods  to  be  paid  for  in  goods 
remains  executory,  the  declaration  must  be  on  the  special  con- 
tract, and  the  measure  of  damages  is  the  loss  caused  by  the 

unexecuted  contract i.  14 

but  where  goods  iDurchased  are  made  payable  in  other  goods  at  a 
specified  price,  and  the  payment  is  not  made,  the  measure  of 
damages  is  the  price  specified,  and  not  the  value  of  the  goods 

to  be  paid,  on  the  day  of  payment i.  14 

on  an  agreement  to  pay  in  notes  circulating  as  money,  only  the 

actual  value  of  the  notes  can  be  recovered i.  30 

Circuit  Court  case  holding  the  contrary  disapproved     ....         i.  31 
contract  to    deliver    "thirty   pounds    in    military  certificates" 

satisfied   by  their  value i.  31 

measure  of  damages  as  between  principal  and  agent  on  purchases 

made  for  principal,  less  onerous  than  between  vendor  and  vendee      i.  545 
where  agent  fraudulently  sells  his  own  goods  to  his  principal,  the 
measure  of  damages  is  the  amount  under  the  market  price 
obtainable  for  the  goods  at  the  time  of  the  sale     .     .     .     .   i.  617,  618 
MEETING  OF  MINDS.     (See  Aggregatio  Mentium;  Frauds, 

Statute  of.) 
MEMORANDUjSI    of    association.      (See    English   Com- 
panies' Acts.) 
MEMORANDUM    OR    NOTE  IN   WRITING.      (See  Note  or 

Memorandum  in  Writing.) 
MIXING    OF    GOODS    (Commixtio). 

where,  by  consent,  parties  own  in  common  according  to  respec- 
tive shares i.  26 

where  not  wrongful  no  effect  on  i-ights  of  owners,  if  separation 

practicable i.  26 

if  separation  not  practicable,  a  joint-ownership  is  created  ...         i.  26 
where  mixture  wrongful,  civil  law  gave  the  whole  to  innocent 

party,  allowing  compensation  to  the  other i.  26 


748  ANALYTICAL   INDEX. 

[References  are  to  both  text  aud  DOtes.] 

MIXING    OF   GOODS— (Continued). 

but  common  law,  to  guard  agaiust  fraud,  gives  entire  property, 

without  account,  to  him  whose  interest  is  wrongfully  invaded        i.  26 
where  goods   are   by  consent  mixed  with  others  of  same  kind 

in  a  mass,  and  part  taken  out  by  one,  the  other  can  maintain 

trover  for  his  part  against  the  holder  of  the  balance    ....         i.  26 
■where  goods  were  wrongfully  intermixed  with  others,  replevin 

was  sustained  for  the  quantity  wrongfully  intermixed  in  the 

common  mass i.  20 

an  agent  must  not  mix  his  principal's  goods  with  his  own  ;  if  he 

do,  he  must  bear  the  damage i.  '27 

if  capable  of  division,  each  may  claim  his  aliquot  part;   but  if 

not,  the  wrong-doer  must  bear  the  loss i.  27 

mixing  goods  delivered  under  a  bailment  does  not  create  a  sale  .         i.  9i 
where  grain  is  mixed  with  other  grain  in  public  warehouse  it  is 

a  bailment,  and  the  title  to  an  equal  quantity  of  the  same 

quality  of  grain  remains  in  the  bailor i.  96 

MONEY.     (See  Action;  Definitions  ;  Indebitatus  Assumpsit; 
Sale.) 
strictly  defined,  excludes  representatives  of  money,  as  negotiable 

instruments,  and  all  but  legal  tenders i.  8 

goods  taken  as  money  sustained  declaration  in  action  for  usury 

on  money  lent i.  8 

goods  may  represent  money  as  money  may  represent  goods     .     .  i.  8 

a  payment  in  bank-notes  as  money  is  a  payment  in  money      .     .         i.  12 
after  time  for  delivery  of  specific  goods,  to  be  paid  for  other 

goods,  has  elapsed,  contract  is  turned  into  money  debt    ...         i.  21 
property  equally  passes  by  sale  whether  consideration  be  money 

or  money's  worth i.  26 

agent  to  receive  debt  must  receive  it  in  money  unless  otherwise 

directed i.  29 

judicial  sales  must  be  made  for  cash i.  29 

mortgagee  selling  mortgaged  property'  must  sell  for  money,  and 

must  pay  excess  of  proceeds  over  his  mortgage  in  money     .     .         i.  29 
agreement  to  pay  in  notes  ciiculating  as  money  treats  the  notes 

as  a  commodity,  and  is  satisfied  by  payment  in  such  not«s, 

though  of  less  value  than  money i.  30 

party  supplying  deserted  wife  with  money  for  necessaries  can  re- 
cover against  husband  in  equity,  but  not  in  law i.  195 

Professor  Parsons'  view  that  this  is  an  unsettled  question  not 

sustained i.  195 

the   law  on   the   subject   well   settled    both    in    England    and 

America i.  195-198 

Statute  of  Limitations  not  a  bar   to  claim  against  a  married 

woman's  separate  estate  for  money  for  necessaries  ....       i.  205 
usually  agents  have  no  power  to  receive  payment  of  debt  except 

in  money i.  586 

under  the  Statute  of  Frauds  and  analogous  statutes  payment  in 

goods  considered  the  same  as  in  money ii.  268-275 

(See  Barter.) 
MUNICIPAL   CORPORATION   TRANSACTIONS. 

as  to  recitals  in  bonds  where  prerequisites  have  to  be  decided  by 

municipal  officers i-  lO? 


ANALYTICAL    INDEX.  749 

[References  are  to  both  text  and  notes] 

MUNICIPAL   CORPORATION  TRANSACTIONS  — (Con^iJiweJ). 

conclusive  as  to  bondjide  purchasers i.  407 

though  all  the  formalities  not  strictly  carried  out i.  408 

and  corporation  has  acted  as  though  bonds  Mere  duly  issued  .  .  i.  408 
bonds  and  coupons  governed  by  ordinary  rules  as  to  negotiable 

paper i.  408 

bond  fide  holder  has  right   to   presume  they  were   duly  issued 

where  corporation  possessed  the  authority i.  408 

municipalities  no  power  to  issue  commercial  paper  unless  con- 
ferred by  statute i.  408,  420 

not  inferred  from  having  power  granted  to  aid  in  construction  of 

railroad      .     .     .     .    _ i.  409 

as  to  extent  to  which  voters  in  New  England  towns  can  bind 

municipality  by  ratification  or  estoppel i.  409,  410 

where  bonds  issued  without  statutory  authority,  invalid  in  hands 

of  third  parties i.  410 

where  invalidity  shown  on  their  face,  recitals  do  not  aid  them  ,  i.  411 
nor  when  recitals  are  made  by  unauthorized  parties  ....  i.  411 
validity  is  given  to  acts  of  officers  de  facto  as  de  jure       .      i.  411,  424,  425 

but  bonds  issued  in  excess  of  authority  invalid i.  412 

where  no  recitals,  holder  must  prove  due  issue i.  412 

ratification  ineffective  where  no  power  to  perform  the  act  .  .  .  i.  412 
where  power  to  perform  it,  and  everything  apparently  regular, 

holder  for  value  protected i.  412 

held  that  holder  of  bonds  could  rely  on  certificate  of  commis- 
sioners as  being  issued  within  extent  authorized i.  413 

scrip  issued  receivable  against  taxes  is  only  quasi  negotiable,  and 
can  only  be  sued  on  by  the  holder  wlio  has  tendered  it  for 

taxes i.  413 

but  disabilities  of  assignor  to  sue  do  not  always  attach       ...       i.  413 
rights  of  parties  on  negotiable  securities  depending  upon  local 
statute  are  concluded  by  the  judicial  construction  of  the  State 

courts i.  413,  414 

but  where  no  such  decisions.  Federal  courts  adopt  their  own  in- 
terpretation of  the  law i.  414 

an  essential  requisite  to  municipality  to  issue  paper  is  authority 

to  do  so,  without  which  third  pai'ties  not  protected      ....       i.  414 
nature  of  the  recitals  which  estop  the  municipality   .     .     .     .    i.  414,  415 
irregularities  may  thus  be  cured,  but  not  want  of  legislative  au- 
thority to  issue i.  415 

where  liability  is  statutory  there  can  be  no  recovery  unless  the 

liability  comes  within  the  statutory  terras i.  415 

where  holders  of   bonds    are  paiiiceps   criminis  with    agents    in 
illegally  issuing  bonds,  there  can  be  no  recovery  in   law  or 

equity i.  415 

as  to  a  lien  on  railroad  to  a  State  enuring  to  bondholders  ...  i.  415 
authority  to  tax  for  general  purposes  does  not  include  power  to 

tax  to  pay  railroad  subscriptions i.  415,  416 

nor  to  issue  bonds  to  aid  merchants  or  manufacturers  .  .  .  .  i.  416 
nor  to  grant  a  bonus  for  developing  water  power  in  the  vicinity  i.  410, 417 
what  are  and  what  are  not  within  usual  municipal  powers  .  .  i.  417 
recitals  do  not  preclude  inquiry  as  to  legislative  authority  to  issue 

bonds;  they  cure  irregularities  by  estoppel i.  417,  418 


750  ANALYTICAL  INDEX. 

[References  are  to  both  text  and  notes  ] 

MUNICIPAL   CORPORATION   TKAXSACTIONS  — (Con^inuet/). 

a  fictitious  assigument  of  coupons  will  not  give  Federal  jurisdic- 
tion as  against  decision  of  the  State  tribunals  on  invalidity  of 
the  bonds i.  418 

municipal  bonds  have  same  quality  as  to  negotiability  as  promis- 
sory notes,  though  containing  special  clause  as  to  payment      i.  418,  419 

as  to  power  of  legislature  in  Illinois  to  authorize  issue  of  bonds  .       i.  419 

where  a  discretion  is  with  municipal  authorities,  courts  have  no 

power  to  control  or  supersede  it i.  419 

recitals  may  be  of  nature  only  to  direct  attention  to  statute  au- 
thorizing issue,  without  having  effect  of  estoppel  .     .     .     .    i.  419,  420 

State  legislatures  usually  have  power  to  authorize  municipalities, 
with  or  without  a  popular  vote,  to  issue  bonds  to  aid  railways        i.  420 

municipal  bonds  neither  duly  signed  nor  registered,  invalid   .     .       i.  420 

must  be  statutory  authority  for  every  issue,  and  without  such, 

recitals  are  no  estoppel i.  420 

■where  officers  have  authority  to  decide  as  to  conditions  precedent, 
their  recitals  are  conclusive;  but  if  recitals  ai'e  not  by  the  tri- 
bunal appointed,  they  are  ineffective i.  421 

where  seal  to  such  instrument  is  accidentally  omitted,  equity  will 

grant  the  necessary  relief i.  421,  422 

where  no  statutory  authority  to  issue  bonds,  corporate  ratification 

of  and  dealing  with  them  will  not  render  them  valid       ...       i.  422 

but  an  ordinance  may  be  legalized  by  statute i.  422 

where  purchase  for  value  can  be  set  up  in  a  suit  on  fraudulently 
issued  bonds,  any  one  taking  through  such  a  holder  can  so 
claim i.  422,  423 

bonds  for  aid  to  railway  near  a  township  was  sustained  on  the 
vote  of  the  people,  where  the  road  passed  nine  miles  from  the 
township i.  423 

holder  of  bonds  duly  issued  not  affected  by  subsequent  legislation      i.  423 

recitals  to  estop  must  be  clear  and  unambiguous i.  424 

municipality  not  estopped  by  payment  of  interest  from  denying 
illegality  of  bonds,  but  must  account  for  what  they  received 
for  them i.  424 

but  are  not  liable  for  their  agreement  as  to  sharing  or  guarantee- 
ing profits  in  undertaking i.  424 

no  defence  as  to  bonds  in  hands  of  bona  fide  holders,  that  com- 
pany receiving  them  was  not  duly  organized i.  425,  433 

power  to  municipality  to  issue  negotiable  securities  usually  im- 
plies power  to  tax  to  meet  them i.  425 

prohibition  against  municipality  assisting  a  corporation  is  pro- 
spective and  not  retrospective i.  425,  426 

where  illegal  bonds  are  binding  in  hands  of  bona  fide  holder  with- 
out notice,  holder  must  show  this,  notwithstanding  he  has  re- 
covered on  similar  bonds i.  426 

municipality  not  estopped  by  latter  fact i.  426 

construction  of  law  governs  when  bonds  are  purchased,  and  they 

are  not  affected  by  subsequent  change  in  construction  of  law  .       i.  426 

where  recitals  showed  a  due  election,  municipality  was  estopped 

from  showing  the  recital  was  untrue i.  427 

negotiable  bonds  being  issued  by  a  municipality  at  all,  become 
prima  facie  bonds  of  the  obligors i.  427 


ANALYTICAL   INDEX.  751 

[References  are  to  both  text  and  notes.] 

MUNICIPAL  CORPORATION   TRANSACTIONS  — (Co;i<mMed). 

granting  power  to  municipality  to  subscribe  for  stock  may  come 

within  matters  for  the  "public  good  " i.  428 

but  a  body  constituted  for  school  purposes  only  cannot  usually 

be  empowered  to  tax  to  build  railroads i.  428 

so  bonds  may  be  void  where  issued  in  excess  of  the  constitutional 

limit  allowed  in  the  State i.  428 

an  election  without  legislative  authority  is  as  invalid  as  is  a  sub- 
scription without  such  authority i.  428,  429 

though  fraudulent  bonds  delivered  to  a  railroad  and  sold  may  be 
invalid  as  against  the  municipality,  the  railroad  selling  them 

are  liable  on  them .       i.  429 

I  legislative  authority  to  issue  bonds  in  excess  of  constitutional 
limits  is  invalid,  and  in  absence  of  recitals  to  estop,  bonds  are 
void  in  hands  of  third  parties        i.  429 

but  the  municipality  is  liable  for  money  received  for  them       .     .       i.  429 

municipal  certificates  not  negotiable;  if  bought  by  third  parties, 
are  subject  to  equities,  the  assignee  only  taking  the  rights  of 
his  assignor i.  429,  430 

■where  registry  and  certificate  are  necessary  to  validity  of  bonds, 

bona  fide  holders  for  value  cannot  otherwise  recover  on  them  .        i.  430 

action  by  officers  of  municipalities  may  be  as  binding  as  an  act 
by  principals,  differing  from  acts  of  agents,  which  are  only 
binding  within  scope  of  agency i.  431 

where  power  is  lodged  in  municipality  to  issue  bonds  for  muni, 
cipal  purposes,  and  they  so  recite,  the  obligors  are  estopped 
from  claiming  that  they  were  not  so  issued i.  431,  432 

where  a  city  issued  bonds  without  authority,  and  subsequently 
obtained  authority  to  issue  other  bonds  to  pay  their  indebted- 
ness, payment  in  the  latter  for  the  former  was  sustained     .    i.  432,  433 

as  to  effect  of  subsequent  on  prior  legislation i.  433 

power  to  aid  a  railroad  company  not  affected  by  consolidation 

with  another  company i.  434 

the  doctrine  of  Us  pendens  not  applying  to  negotiable  paper,  holder 
of  municipal  bonds  has  right  to  assume  correctness  of  certifi- 
cate as  to  preliminary  proceedings,  though  prior  to  their  issue 
suits  were  instituted  to  prevent  such  issue i.  434 

municipality  held  liable  for  bonds  even  on  assumption  of  their 

•  illegality,  having  been  given  for  work  which  they  had  power 
to  have  done i.  434,  435 

corporation  is  liable  on  its  contract  within  its  powers     ....       i.  435 

bonds  may  be  practically  and  legally  though  not  verbally  within 

power  conferred i.  435 

majority  of  United  States  Supreme  Court  held  that  power  to  tax 

within  limit  named  was  not  confined  to  that  limit      .     .     .   i.  435,  436 

differing  view  of  the  minority,  contra,  considered  sounder       .    i.  436,  437 

a  power  to  guarantee  bonds  bearing  interest  implies   power  to 

guarantee  interest  as  well  as  principal 1.  437 

legislation  to  render  valid  bonds  illegal  for  irregularity  is  within 

usual  legislative  power,  and  is  not  retroactive  legislation     .     .       1.  437 

majority  of  United  States  Supreme  Court  held  that  "  two-thirds 
of  qualified  voters"  did  not  mean  of  qualified  voters,  but  only 
of  the  number  voting i.  438 


752  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

MUNICIPAL   COPvPORATIOX   TRANSACTIONS  — (Con^/«Me(/). 

minority  holding,  and  the  holding  in  other  cases,  contra,  con- 
sidered better 1.  438,  439 

alteration  in  a  railroad  company  after  municipality  has  deliv- 
ered authorized  bonds,  does  not  affect  them  in  the  hands  of 
third  parties i.  439 

constitutional  prohibition  against  authorizing  municipal  aid  to 
corporations  affects  only  future  authority,  not  past  authority 
subsequently  acted  upon,  though  to  a  company  consolidating 
with  another i.  439,  440 

a  municipality's  bonds  issued  under  authority  of  an  act  were 
sustained,  though  issued  after  an  act  passed  prohibiting  such 
issue i.  441 

where  bonds  are  issued  under  authority,  holder  is  not  affected  by 

the  fraud  or  misconduct  of  the  obligor's  agents i.  440 

a  municipality  cannot  issue  bonds  for  extraneous  purposes  with- 
out legislative  authority i.  440 

want  of  legislative  authority  is  conclusive  against  all  parties  .     .       i.  44u 

where  issued  by  legislative  power,  and  so  appear,  they  are  negoti- 
able, prior  equities  are  shut  off,  and  the  recitals  as  to  regula- 
tions, etc.,  are  conclusive     .     .     .     .• i.  441 

where  essential  forms  are  dispensed  with,  municipal  bonds  are 
good  only  in  hands  of  innocent  third  parties  for  value  with- 
out notice i.  441 

whese  coupons  refer  to  bonds,  the  purchaser  of  the  coupons  is  put 
upon  inquiry,  and  is  chaiged  with  notice  of  what  the  bonds 
contain i.  441 

where  on  their  face  bonds  are  duly  certified,  by  the  officer  whose 
duty  it  is  to  decide  the  question,  that  they  have  been  duly 
sanctioned,  his  decision,  in  absence  of  fraud,  is  final       ...       i.  442 

in  the  hands  of  a  bond  fide  purchaser  he  has  only  to  look  at  their 

face i.  442 

United  States   bonds  issued  to   Texas   held   good,  though  not 

indorsed  in  accordance  witii  the  legislation  of  the  State       .     .       i.  443 

how  such  bonds  are  affected  by  the  State  receiving  the  bonds 

being  in  rebellion i.  442,  443 

MUTUALITY.      (See  Frauds,  Statute  of;   Note  or  Memor- 
andum IN  Writing.) 
NECESSARIES.     (See  Drunkards;  Infant;    Lunatics;  Mar- 
ried Women  ;  Ship-Masters.) 

include  such  things  as  are  useful  and  suitable  to  the  state  and 

condition  in  life,  and  not  for  bare  subsistence  merely      .     .     .       i.  110 

parent  not  liable  for  necessaries  to  infant  child  unless  by  express 
promise,  or  from  facts  by  which  promise  can  be  implied.  (See 
Parent  and  Child.) i.  111-111 

presents  made  by  an  infant  to  lady  who  subsequently  became  his 

wife,  held  necessaries i.  117 

necessaries  or  not  necessaries,  question  of  fact  for  jury,  where 

there  is  evidence  on  which  they  can  find  aflirmatively     .     .     .       i.  118 

where  jury  held  goods  were  necessaries,  the  court  set  aside  their 
verdict  on  ground  that  there  was  no  evidence  of  goods  being 
necessaries i.  IIS 

this  case,  on  the  facts,  disapproA-ed  and  reversed i.  119 


ANALYTICAL   INDEX.  753 

[References  are  to  both  text  and  notes.  ] 
NECESSARIES  —  (Continued). 

question  for  jury  whether  necessaries,  but  if  infant  sufficiently 

supplied  therewith  then  not  necessaries i.  119 

evidence  is  relevant  as  to  whether  articles  necessary  or  not     .     .       i.  12U 

wliere  palpable  that  the  articles  could  not  be  necessary,  no  ques- 
tion for  the  jury i.  121 

law  now  settled  in  England  that  plea  of  necessaries  may  be  re- 
butted by  showing  infant  supplied,  and  risk  is  with  adult  party 
■who  supplies i.  121,  127 

decisions  in  this  country  are  to  same  effect       i.  121,  122 

rule  in  both  countries  the  same,  that  where  evidence  of  necessa- 
ries, question  for  jury  under  direction  of  court i.  122 

where  deed  given  by  infant  for  necessaries  though  party  supply- 
ing was  entitled  to  payment,  the  deed  was  not  enforced       .     .       i.  122 

lunatics  may  contract  for  necessaries  with  one  having  a  knowl- 
edge of  insanity  even  though  after  inquisition  of  lunacy     .     .       i.  142 

also  liable  for  necessaries  furnished  his  wife  during  lunacy      .     .       i.  143 

costs  incurred  on  commission  of  lunacy  held  as  necessaries  for 

which  lunatic  liable i.  14:5 

cannot  avoid  his  implied  contracts,  such  as  for  necessaries  fur- 
nished his  wife i.  14^3 

in  equity,  proof  allowed  of  money  paid  wife  during  husband's  lu- 
nacy, and  applied  for  her  necessaries,  though  she  had  a  sepa- 
rate income i.  143 

but  where  she  is  sufficiently  supplied  with  necessaries,  her 
power  to  bind  husband  ceases i.  144 

drunkards  liable  for  necessaries i.  147 

wife's  power  to  buy  necessaries.    (See  Married  Women.)     .    i.  151-158 

where  wife  compelled  to  leave  husband  for  his  misconduct  she 

becomes  agent  of  necessity.    (See  Agents  of  Necessity.)    i.  159-195 

married  woman  not  liable  for  necessai'ies,  except  as  affecting 

her  separate  estate,  when  living  separate  from  her  husband     .       i.  193 

but  is  liable  where  husband  banished i.  193,  194 

in  many  cases  held  so  liable  when  deserted  by  her  husband    .     .       i.  194 

wife's  liability  for  family  expenses  under  statutes  such  as  those 
in  Iowa,  Oregon,  and  Illinois,  not  limited  to  necessary  family 
expenses i.  213 

proof  that  supplies  to  shipmaster  are  necessaries  must  be  made 

by  party  supplying  them i.  2G1 

in  England,  held  that  they  are  what  a  prudent  owner  would  have 

ordered i.  2G1 

in  this  country,  held  in  some  cases,  the  decision  as  to  necessaries 

with  master  and  not  M'ith  the  supplier i.  261 

the  better  rule  is  that  if  on  fair  inquiry  the  articles  seem  neces- 
saries, and  are  furnished  to  the  master  for  the  ship  in  good 
faith i.  2G3 

where  necessaries  are  furnished  ship  in  foreign  port,  inference  is 

that  the  credit  was  given  to  the  ship,  and  not  to  the  owners     .       i   273 

material-men  have  lien  on  foreign  ship  for  necessaries  furnished, 
and  on  ship  held  out  as  foreign  when  supplies  are  furnished  in 
faith  thereof i.  273 

to  constitute  valid  bottomry  bond,  master's  authority  being  based 

on  necessity,  money  must  be  for  the  necessities  of  the  ship    i.  283,  284 

VOL.  II.  48 


754  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 
NECESSARIES—  (CoM^muerf). 

claim  by  material-men  for  necessaries  does  not  take  priority  over 
mortgage,  unless  ship  iu  their  actual  possession  to  give  them 
possessory  lien i.  284 

courts  having  admiralty  jurisdiction  only  cannot  entertain  an 
action  for  necessaries  at  the  home  port,  the  owners  being 
domiciled  there i.  285 

where  County  Court  has  not  jurisdiction  in  action  for  necessaries 
against  foreign  owner  where  claim  is  founded  on  bottomry, 
transferring  claim  to  admiralty  does  not  enlarge  the  jurisdic- 
tion  i.  285 

where  managing  owner  is  not  agent  to  bind  another  owner  of 
ship  for  necessaries,  and  is  not  held  out  as  such  agent,  the 
other  owner  is  not  liable  for  necessaries  purchased  by  the  man- 
aging owner i.  288 

charges  for  necessaries  against  a  foreign  ship  take  priority  even 

over  bottomry  bond  previously  given i.  288,  289 

purchaser  of  interest  in  vessel  not  liable  for  supplies  previously 

furnished  the  vessel i.  289 

courts  of  admiralty  have  jurisdiction  to  enforce  actions  for  ne- 
cessaries to  foreign  vessel,  whether  furnished  on  personal  credit 
or  not i.  289 

the  master  has  a  maritime  lien  for  his  expenditure  for  necessaries 

even  against  a  bona  fide  purchaser  of  the  ship i.  290 

owners  of  ships  are  not  liable  for  necessaries  purchased  after 

their  ownership  has  ceased i.  291,  292 

such  supplies  may  be  on  credit  of  master,  vessel,  or  existing  own- 
ers, but  not  previous  owners i.  292 

what  necessaries  are  to  vessel  in  distress  to  sustain  bottomry 

bond 1.  293 

necessary  purchases  at  foreign  port,  as  to  exemption  from  duty  .       i.  293 
NECESSITY.      (See  Agents  of  Necessity  ;  Married  Women  ; 
Ship-Master.) 

agency  of  necessity  in  principle  analogous  to  way  of  necessity    .       i.  161 

principles  as  to  waj'  of  necessity i-  161 

maritime  hypothecations  are  creatures  of  necessity  and  distress       i.  278 

what  the  necessity  is  that  will  justify  hypothecation      ....       i.  286 
NEGLIGENCE.     (See  Estoppel  ;  Fraud.) 

directors  of  companies  are  not  personally  liable  to  stockholders 

except  where  there  has  been  negligence  or  fraud 1.  298 

principal  liable  for  agent's  negligence  within  scope  of  his  employ- 
ment during  continuance  of  employment 1.  581 

NEGOTIABLE  SECURITIES.     (See  Bill  or  Note.) 
NOTE  OR  MEMORANDUM  IN  WRITING.     (See  Acceptance; 
Actual  Receipt;  Earnest  or  Part  Payment;  Frauds, 
Statute  of.) 

made  by  purchaser  after  delivery  of  goods  to  a  carrrier  and  lost 

at  sea,  held  sufficient  to  satisfy  the  Statute  of  Frauds     ...      ii.  286 

no  distinction  between  the  4th  and  17th  sections  of  the  Statute 
of  Frauds  as  to  the  memorandum  to  be  signed,  of  the  con- 
tract, bargain,  or  agreement ii-  505 

the  distinction  on  this  point  taken  in  some  of  the  cases  unwar- 
ranted         ii.  505 


I 


ANALYTICAL   INDEX.  755 

[References  are  to  both  text  and  notes.] 

NOTE   OR   MEMORANDUM  IN   WRITING  — (Con^mwerf)- 

so  both  sections  are  in  effect  the  same  with  respect  to  the  signing 
of  the  memorandum  "  by  the  party  "  or  "by  the  parties  "  to  be 
charged .« ii-  505 

if  any  distinction,  it  is  not,  as  is  falsely  assumed  in  some  of  the 
cases,  that  more  is  required  under  the  4th  than  under  the  17th 
section        ii-  50G 

the  distinction  taken  in  Wain  v.  Warlters,  Egerton  v.  Mathews, 
and  by  Alderson,  B.,  in  Marshall  v.  Lynn,  that  less  is  required 
under  the  17th  than  under  the  4th  section,  is  untenable    .     ii.  506,  507 

in  Marshall  v.  Lynn,  it  was  really  decided  that  there  was  no  dis- 
tinction between  the  sections ii.  506 

both  of  the  other  cases  well  decided,  and  Lord  Elleuborough's  at- 
tempted distinction  a  mistaken  one ii.  507 

in  Wain  v.  Warlters,  under  the  4th  section,  the  note  showed  no 
consideration,  and  hence  it  was  not  a  note  of  a  contract,  bar- 
gain, or  agreement ii.  507,  508 

in  Egerton  v.  Mathews,  under  the  17th  section,  the  note  did  show 
the  consideration,  but  not  the  mutuality,  and  a  nonsuit  was 
improperly  granted  by  Lord  Ellenborough li.  503,  512 

the  nonsuit  was  set  aside,  as  the  consideration  did  appear  in  the 

writing,  although  the  mutuality  did  not ii.  508 

Blackburn    unable   to  see  what  distinction  Lord  Ellenborough 

fancied  was  to  be  made  between  the  two  sections  ...      ii.  508 

obviously  in  the  two  ca.ses  named,  the  mutuality,  which  under 
either  section  is  not  required  to  be  shown  by  the  writing,  was 
confounded  with  the  consideration,  which  is  required  to  be 
shown  equally  under  both  sections ;  the  matter  fully  discussed 
in  note ii.  508-515 

the  view  of  Lord  Ellenborough  in  Wain  v.  Warlters,  and  at  nisi 
prius,  in  Egerton  v.  JNIathews,  as  to  any  distinction  between  the 
two  sections,  is  correctly  overthrown  by  the  holding  in  Lay- 
thoarp  V.  Bryant ii.  511 

the  views  of  Roberts  sustained  against  the  criticism  of  Browne 

on  the  Statute  of  Frauds ii.  510,  511 

but  though  the  mutuality  does  not  have  to   be   stated   in  the 

writing,  it  must  exist  in  fact  or  there  is  no  contract    .     .     .     .      ii.  512 

the  mutuality  confounded  in  the  United  States  courts  with  the 

consideration ii.  513,  514 

though  the  consideration  appear  in  the  writing,  and  not  the  mu- 
tuality, yet  the  latter  must  appear,  though  it  may  be  shown 
dehors  the  writing ii.  514 

by  statute,  in  England,  the  consideration  for  the  promise  to  pay  the 
debt  of  another  need  not  appear  by  the  writing,  but  it  must  be 
shown  otherwise,  or  there  is  no  contract  or  "  special  promise  "  ii.  514,  515 

so  as  to  mutuality  under  the  Statute  of  Frauds ii.  515 

the  effect  of  Wain  v.  Warlters  and  Egerton  v.  Mathews  is  that 
the  whole  contract  except  the  mutuality  must  be  shown  by  the 
writing ii.  513-515 

the  doctrine  established  by  these  cases,  that,  whether  under  the 
4th  or  17th  section,  the  consideration  must  be  shown,  has  been 
ever  since  uniformly  followed  in  England  except  as  affected  by 
statute ,     .     .     .     ii.  515 


756  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

NOTE   OR  MEMORANDUM   IN   WRITI'SG—  (Continued). 

statement  in  Smith's  Leading  Cases  and  in  Parsons  on  Contracts, 
that  it  is  sufficient  if  the  promise  of  the  party,  without  the  con- 
sideration, appear  in  the  writing,  is  inaccurate       .     .     .     .   ii.  515,  516 

similar  incorrect  statement  in  Bennett's  notes  to  Benj.  on  Sales  .      ii.  516 

the  mistake  in  these  statements  shown,  and  that  the  consideration 

must  appear  equally  under  the  17th  as  under  the  4th  section    .     ii.  51G 

distinction  pointed  out  between  different  clauses  of  the  4th  sec- 
tion, and  the  necessity  of  the  consideration  appearing  in  the 
writing  in  all  the  clauses ii.  517 

in  Vermont,  the  error  is  made  that  the  consideration  must  be 

stated  under  the  17th  section,  but  need  not  be  under  the  4th  .      ii.  517 

all  of  the  leading  words  in  the  4th  and  17th  sections  of  the  stat- 
ute in  themselves  imply  the  necessity  of  the  consideration 
appearing  by  the  writing ii.  517,  518 

Wain  V.  Warlters  approved  and  followed  in  Saunders  v.  Wake- 
field      ii.  516,  517 

Wain  V.  Warlters,  and  Egerton  v.  Mathews  in  thorough  accord, 
each  showing  the  necessity  of  the  consideration  aj^pearing  by 
the  writing .  .  ii.  518,  519 

but  neither  of  them  holding  the  necessity  of  the  mutuality  so 

appearing ii.  518,  519 

Lord  Ellenborough's  mistakes  at  nisi  priits  in  the  latter  case  .     .      ii.  519 

by  the  right  holding  in  these  cases  the  wrong  holding  is  shown 
in  those  State  courts  in  this  country  which  hold  that  the  con- 
sideration need  not  be  shown  by  the  writing     .     .     .     .     1  ii.  519,  520 

and  these  American  cases  themselves  hold  that  the  price  must  be 
shown  by  the  writing,  and  the  price,  as  that  which  is  to  be  got 
for  that  which  is  to  be  given,  is  the  consideration  .     .     .  i.  1-6;  ii.  520 

as  also  must  the  terms  be  shown  which  make  partof  the  consider- 
ation      ii.  520 

while  the  writers  named  have  fallen  into  the  error  that  the  con- 
sideration must  be  shown  by  the  writing  under  the  4th  but 
not  under  the  17th  section,  these  courts  in  this  country  have 
held  that  it  must  be  shown  under  the  17th,  but  not  under  some 
clauses  of  the  4th ii.  521 

mistake  of  Browne  on  the  Statute  of  Frauds  in  assuming  that  the 

price  and  the  consideration  are  essentially  different    ii.  521-52-3,  541,  568 

his  mistake  arose  from  confounding  the  mutuality,  or  the  agree- 
ing of  the  parties,  with  the  consideration ;  the  matter  fully 
discussed  in  the  note ii.  521-525 

Lord  Ellenborough's  mistakes  in  Wain  v.  Warlters,  and  in  Eger- 
ton V.  Mathews  at  7iisi  prius,  abandoned  in  this  latter  and  in 
other  cases ii.  522-526 

other  English  cases  on  consideration  and  mutuality  .     .     .     .  ii.  526,  527 

the  consideration  must  be  expressly  stated  or  appear  by  fair  im- 
plication   ii.  526,  527 

to  meet  the  requirements  of  the  statute  under  either  of  the  sec- 
tions, all  the  essentials  of  the  contract  must  be  shown,  or  the 
writing  is  not  a  note  of  the  whole  contract ii.  527,  528 

hence,  if  under  either  of  the  sections  the  writing  omits  any  of 
the  terms  which  form  a  part  of  the  consideration,  it  is  insuffi- 
cient ;  c^ses  on  the  subject  stated  and  examined      .     .     .    ii.  527-531 


ANALYTICAL   INDEX.  757 

[References  are  to  both  text  and  notes.] 

NOTE   OR  MEMORANDUM   IN  WRITING  — (Co«<m«erf). 

deductions  of  law  from  English  cases ii.  530-532 

cases  in  this  country  which  are  contra  to  such  deductions  are  really 
contra  to  themselves,  as  are  their  Statutes  of  Fraud  to  those  cases 
which  affect  to  hold  that  the  consideration  need  not  be  stated 
in  the  writing ii.  532 

unsoundness   of  the  leading  Massachusetts  case  of  Packard  v. 

Richardson  shown ii.  532-534 

the  reasoning  in  that  case  obiter  dicta,  as  the  consideration  in  it 
sufficiently  appeared,  the  undertaking  there  being  an  original 
and  not  a  collateral  undertaking ii.  534,  535 

the  court  in  that  case  mistake  the  mutuality  for  the  consideration, 
and  misunderstand  the  effect  of  Wain  v.  Warlters  and  Egerton 
V.  Mathews ii.  534-537 

fallacy  of  the  court  noticed  by  the  editor  of  the  Massachusetts 

Reports;  ed.  of  1864 ii.  537 

the  bad  general  reasoning  in  cases  like  Packard  v.  Richardson  is 

usually  applied  to  but  one  clause  of  the  4th  section     ....      ii.  537 

statutes  only  applying  to  that  one  clause  more  reasonable  than 

those  applicable  to  the  whole  Statute  of  Frauds      .     .     .     .  ii.  537,  538 

Packard  v.  Richardson  unentitled  by  its  bad  reasoning  to  any 

•weight ii.  537 

this  bad  reasoning  shown  by  actual  decisions  even  in  Massachu- 
setts    .     .    ii.  538-550 

those  cases  which,  notwithstanding  Packard  v.  Richardson  and 
the  Massachusetts  amending  act,  hold,  ignoring  these,  that  the 
whole  contract,  including,  of  course,  the  consideration,  should 
be  stated,  fully  considered ii.  538-550 

the  Massachusetts  amending  statute ii.  541 

differing  from  the  Michigan  statute ii.  547 

the  latter  stated  and  examined ii.  547-550 

ignored  by  the  Michigan  Supreme  Court ii.  549,  550 

the  Maine  cases,  too,  while  affecting  to  hold  that  the  consider- 
ation need  not  appear  by  the  writing,  hold  generally  the  re- 
verse; the  cases  stated  and  examined ii.  550-562 

the  leading  case  in  Elaine,  as  in  Massachusetts,  not  within  the 
statute  at  all  ;  being  an  original  and  not  a  collateral  under- 
taking     ii.  550,  551 

the  other  Maine  cases  really  show  the  necessity  for  the  consider- 
ation appearing  by  the  writing ii.  550-562 

the  distinction  is  usually  made  as  to  but  one  of  the  clauses  of  the 
4th  section,  but  the  statute  applies  to  that  as  to  its  other  clauses, 
and  to  the  17th  section ii.  552,  553-555,  558 

the  Maine,  like  the  Massachusetts  cases,  err  in  generally  confound- 
ing the  consideration  with  the  mutuality ii.  554,  558 

the  latest  Maine  cases  show,  as  do  those  in  Massachusetts,  al- 
though affecting  to  hold  otherwise,  that  the  consideration  gen- 
erally must  appear  by  the  writing ii.  556-562 

the  exception  is  as  to  the  special  promise  for  the  debt  of  another     ii.  562,  563 

in  this  they  contravene  the  statute,  and  hold  contra  to  all  the 

well-decided  cases  relating  to  that  clause  in  the  4th  section    ii.  563,  5G4 

the  contradictions  and  absurdities  shown  in  which  such  holding 

involves  them ii.  562-566 


758  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

NOTE   OR  MEMORANDUM  IN   WRITING— (Con/ittuecT). 

Michigan  cases  show  similar  contradictions ii.  566 

early  decision  in  New  York  correctly  holding  that  the  consider- 
ation must  appear  by  the  writing ii.  566,  567 

and  in  the  Supreme  Court  of  the  United  States,  before  Wain  v. 
Warlters  was  decided,  it  was  held  that  the  contract  must 
"wholly"  appear  by  the  writing ii.  567,  568 

and  later,  expressly,  that  the  consideration  (in  these  cases,  the 

price)  must  so  appear ii.  568-572 

though  parol  evidence  is  admissible  to  explain  technical  expres- 
sions, or  to  connect  papers  referred  to  in  the  writing       ...      ii.  569 

recognizing  and  approving  the  holding  of  the  English  cases  on 

the  subject ii.  569 

cases  decided  as  to  whether  or  not  the  consideration  is  sufficiently 

shown  by  the  writing ii.  569-571 

Supreme  Court  of  the  United  States  show  that  the  contract  has 
to  appear  by  the  writing,  as  well  under  the  17th  as  under  the 
4th  section ii.  571 

misleading  effect  of  Lord  Ellenborough's  mistake  in  Egerton  i-. 

Mathews  at  nisiprius  on  text-writers  in  England  and  America  .      ii.  571 

shown  also  in  an  early  New  York  case ii.  571,  572 

consideration  must  alike  appear  by  the  writing,  whether  the  case 

under  the  4th  or  17th  section ii.  572,  573 

■which,  however,  may  be  implied  or  inferred  from  the  terms,  as 

well  as  expressed ii.  573 

effect  of  statutes  in  New  York  as  to  the  consideration  being 

expressed ii.  573,  574 

discussion,  in  note,  as  to  the  consideration  in  original  and  collat- 
eral undertakings ii.  574-580 

the  principles  of  law  as  to  the  necessity  of  the  consideration  being 

stated  in  writing,  accurately  stated  in  an  old  New  Jersey  case    ii.  572-580 

numerous  American  authorities  sustaining  the  English  decisions 

on  the  subject ii.  580,  581 

Vermont  cases,  like  those  of  Massachusetts  and  Maine,  while  af- 
fecting to  hold  that  the  consideration  (improperly  confounding 
it  with  the  mutuality)  need  not  appear  by  the  writing,  yet  hold 
that  it  must  so  appear ii.  581-583 

conclusion  is  that  when  the  consideration  does  not  appear  by  the 
writing,  there  is  no  written  note  of  the  contract,  and  the  statute 
is  not  satisfied ii.  581-583 

the  essential  requisites  of  the  memorandum ii.  584-674 

all  must  be  shown  by  the  writing  signed  by  the  party  or  parties 
to  be  charged,  except  the  mutuality,  which  can  be  shown  by  evi- 
dence aliunde ii.  584 

how  it  must  be  signed ii.  585 

if  authenticating  the  instrument,  immaterial  where  the  signature 

appears ii.  586 

telegraph  clerk  signing  despatch  actually  sent  may  be  sufficient 

signing ii.  586 

so  where  the  name  appears  in  the  third  person ii.  587 

and  in  a  letter  to  one's  own  agent ii.  587 

but  where  the  name  is  used  merely  as  reference  or  description, 

and  not  as  of  a  promise  or  undertaking,  it  is  not  sufficient .  ii.  587t  588 


ANALYTICAL   INDEX.  759 

[References  are  to  both  text  and  notes.] 

NOTE   OR   MEMORANDUM  IN   WRITING  — (Con^tnwerf). 

and  as  a  signing  is  required,  when  the  party's  name  does  not 
appear  in  the  writing,  the  statute  is  not  satisfied,  though  the 
party  may  have  written  the  whole  instrument ii.  588 

other  instances  of  insufficient  signing ii.  588,  589 

an  unsigned  agreement  may  be  so  connected  with  a  signed  letter 

as  to  satisfy  the  statute ii.  589 

a  memorandum,  made  by  one  as  ''sold  A.  B.,"  held  a  sufficient 

signing  by  him  of  a  note  of  a  contract      .     . ' ii.  589,  590 

sealing  is  not  signing ii.  585,  590 

but  signing  with  a  mark  satisfies  the  statute ii.  590,  591 

as  does  stamping  the  name  as  a  signature ii.  591 

or  printing  it,  where  it  is  intended  as  a  recognition  of  the  con- 
tract      .  ii.  591,  592 

signing  with  a  pencil  is  sufficient ii.  592 

and  so  is  a  signing  by  initials ii.  593,  594 

question  by  Benjamin  whether  this  is  decided,  but  it  is  clearly 

so ii.  593,  594 

and  the  signature  is  good,  though  the  signer's  hand  be  guided  by 

another ii.  594 

good,  under  the  statute,  on  the  principle  of  agency,  also      ...      ii.  594 

sufficient  if  signed  by  the  party  to  be  charged,  though  not  signed 

by  the  other  party ii.  594 

statement  by  Vaughan,  J.,  as  to  the  holding  in  Wain  v.  Warl- 

ters,  on  this  point ii.  594 

mistake  in  Wood  on  Frauds,  where  the  mutuality  is  confounded 

with  the  consideration ii.  594 

but  though  the  mutuality  is  not  required  to  be  shown  by  the 
writing  (as  that  has  to  be  signed  by  the  party  to  be  charged, 
only),  to  make  a  contract,  bargain,  or  agreement,  it  must  exist 
in  fact ii.  595 

hence  it  results  that  as  there  must  be  mutuality  in  fact,  and  as 
the  note  need  be  signed  by  the  party  to  be  charged  only,  the 
mutuality  may  be  shown  by  evidence  aliunde,  either  written  or 
verbal,  or  by  the  note  itself,  when  signed  by  both  the  parties     ii.  595,  673 

the  distinction    between  the   mutuality   and   the   consideration 

shown  by  Tindal,  C.  J.,  in  Laythoarp  v.  Bryant    .     .     .     .  ii.  595,  596 

but  while  the  mutuality  need  not  appear  by  the  writing,  the 
memorandum  must  show  who  the  contracting  parties  are, 
and  then  the  assenting  to  and  acting  on  the  contract  may  be 
shown  by  parol ii.  595,  59G 

and  a  written  offer  may  be  accepted  by  parol,  so  as,  under  the 

statute,  to  bind  the  party  signing  the  written  offer     ....      ii.  597 

but  the  acceptance  of  this  (assent  to)  must  be  in  terms,  and  not 

varied ii.  598 

written  proposal,  accepted  by  parol,  repeatedly  held  to  satisfy  the 

statute ii.  598,  599 

usually,  such  proposal,  if  not  promptly  accepted,  is  revocable    ii.  598,  599 

where  the  written  offer  is  acted  on  by  the  other  party,  his  assent 

is  implied  and  the  signer  is  bound ii.  599 

though  questioned  by  Kindersley,  V.  C,  parol  assent  of  written 
offer  under  the  statute  held  good  in  an  old  case  (a.  d.  1705), 
the  authority  of  which  is  recognized  in  the  latest  English  case  ii.  600.  601 


760  ANALYTICAL    INDEX. 

[References  are  to  both  text  and  notes.] 

NOTE   OR   MEMORANDUM   IN   WRITI^SG— (Continued). 

the  same  principle  is  acted  on  in  cases  in  this  country  .     .     .  ii.  601,  602 

without  the  assent,  to  establish  the  mutuality,  the  party  signing 
the  writing  is  not  bound ii.  602,  603 

a  request  on  one  side,  and  assent  on  the  other,  make  the  aggre- 

gatio  mentlum  constituting  the  agreement ii.  603 

sale  by  one  of  the  parties  necessarily  implies  purchase  by  the 

other,  as  a  sale  to  parties  shows  that  these  aie  purchasers    .      ii.  603 

rules  as  to  acceptance  or  rejection  of  proposals  for  a  contract  .  ii.  603,  604 

varying  terms  of  an  offer  may  amount  to  a  rejection  of  it  .     .  ii.  604,  605 

■where  terms  are  indefinite,  specific  performance  will  not  be  de- 
creed, nor  where  the  subject  does  not  admit  of  a  reasonable  de- 
cree being  made ii.  605 

though  the  writing  need  not  be  signed  by  both  parties,  it  must 

show  who  are  the  parties  to  it ii.  605,  606 

•where  this  can  be  reasonably  made  out  from  the  writing,  it  is 

sufficient ii.  606 

but  a  memorandum  signed  by  the  vendee  in  the  vendor's  book 

is  not  good,  the  vendor's  name  not  appearing  in  the  book   .     .      ii.  606 

but  where  written  in  an  order-book  of  the  other  party,  whose 

name  was  on  the  fly-leaf  of  the  book,  the  statute  is  satisfied     .      ii.  609 

when  the  note  signed  by  the  vendee  does  not  name  the  v^endor, 

it  is. insufficient ii.  606,607 

this  is  not  remedied  by  a  letter  written  by  the  vendee,  naming 

the  vendor,  unless  the  letter  refers  to  the  note ii.  606 

but  where  the  papers  are  connected,  tlie  statute  is  satisfied     .     .      ii.  607 

though  misdescription,  recognition  may  be  sufficient,  in  absence 

of  injury,  as  by  loss  of  set-off ii.  607 

as  insufficient  signing  may  be  by  a  subsequent  writing  coupled 

with  the  first ii.  607 

the  parties  to  the  contract  must  appear  by  name,  or  by  descrip- 
tion or  reference ii.  607 

but  a  promise  in  writing  to  pay  any  one  unnamed  is  binding  in 

favor  of  any  one  acting  on  it ii.  607 

but  where  not  so  intended,  is  not  good  for  the  one  intended  un- 
less his  name  appear ii.  608 

a  fortiori  not  so,  where  given  to  another  than  the  one  in- 
tended   ii.  608,  609 

cases  not  within  the  statute,  as  advertising  a  reward  for  informa- 
tion or  for  tenders,  good  at  common  law  without  parties  being 
named  . ii.  609 

where  guaranty  intended  for  any  one  unnamed,  it  is  a  contract 

with  all  the  world ii.  609,  610 

old  U.  S  Supreme  Court  case,  to  the  same  effect,  Marshall,  C.  J., 

delivering  the  judgment ii.  609,  610 

being  in  a  contract  with  all  the  world,  the  statute  is  satisfied,  as 

the  whole  contract  appears  by  the  writing ii.  610 

the  contract  in  the  U.  S.  Supreme  Court  case  not  being  with  all 
the  world,  but  intended  for  one  person  only,  and  his  name  not 
appearing  in  the  writing,  the  statute  was  not  satisfied,  and  the 
case  was  wrongly  decided ii.  610,  611 

a  case  in  South  Carolina  within  the  principle  as  to  a  contract  with 

all  the  world ii.  611 


ANALYTICAL   INDEX.  761 

[References  are  to  both  text  and  notes.] 

NOTE   OR  MEMORANDUM   IN   WRITING  — ^Continued). 

but  on  the  fallacy  that  the  consideration  need  not  appear  in  the 
•writing,  the  case  decided,  on  analogy,  that  the  names  of  the 
parties  need  not  appear  either ii.  611,  612 

on  the  same  principle  of  analogy,  a  blank  signature  would  meet 

the  requirements  of  the  statute ii.  612 

the  case  is  based  on  a  misunderstanding  of  Tindal,  C.  J.,  in  Lay- 
thoarp  V.  Bryant,  where  it  was  expressly  held  that  the  names 
of  the  parties  must  appear,  and  that  they  did  appear  in  the 
writing ii.  612,  613 

the  other  authorities  cited  also  show  that  the  names  of  the  par- 
ties to  the  contract  must  appear  by  the  writing,  unless  in  the 
exceptional  case  of  a  contract  with  all  the  world     .     .     .     .  ii.  614-616 

in  which  latter  case  a  contract  arises  witli  each  individual  acting 

on  the  writing .  ii.  616,  617 

where  addressed  to  one  party  and  acted  on  by  another,  the  writing 

is  not  binding  for  want  of  privity  of  contract ii.  617 

conclusions  stated,  applicable  to  the  conflicting  decisions  on  the 

subject ii.  618 

if  the  writing  under  the  statute  contain  a  sufficient  description  of 
the  parties  to  the  contract,  this  is  sufficient  without  their  actual 
names  appeai'ing ii.  618 

"  by  direction  of  executors,"  or  "  proprietors,"  or  "  trustees,"  is 
sufficient ii.  619,  620 

but  not  "  vendor,"  as  it  contains  no  description  of  who  the  ven- 
dor is ii.  619 

nor  client,  nor  friend,  of  a  named  agent,  as  this  renders  parol  evi- 
dence necessary  to  show  who  the  client  or  friend  is     ...     .     ii.  620 

though  the  names  do   not  appear  in  the  contract,  they  may  be 

supplied  by  correspondence  or  subsequent  receipts     .     .     .      i.  620,  621 

but  the  names  must  appear  as  of  parties  to  the  contract,  and  not 

as  matter  of  description ii.  621 

and  the  writing  must  be  clear  enough  to  show  how  the  parties 

contract,  and  what  they  contract  to  do ii.  621 

but  the  surrounding  circumstances  can  be  shown  in  order  to  make 
the  writing  understood,  and  to  show  the  meaning  of  the  lan- 
guage used ii.  622 

effect  of  the  statute  on  collateral  transactions  as  to  the  writing 

showing  the  consideration ii.  622-624 

as  all  the  essentials  of  the  contract  must  appear  by  the  writing, 
where  the  sale  is  by  sample,  if  the  statement  of  that  fact  is 
omitted,  the  statute  is  not  satisfied ii.  624 

■while  the  writing  must  be  a  note  of  the  whole  contract,  that 

which  is  implied  need  not  be  expressed  in  the  writing      .     .      ii.  624 

a  contract  required  to  be  in  writing  under  the  statute  cannot  be 
varied  by  parol ii.  62-1,  625 

the  common  law  in  this  respect  altered  by  the  statute     ....      ii.  625 

the  alleged  conflicting  cases  on  this  subject  stated  and  elaborately 

discussed  in  note ii.  625-644 

the  essentials  of  the  contract  may  be  contained  in  different  docu- 
ments if  they  can  be  properly  connected ii.  62.5-628 

rules  applicable  to  such  cases ii.  628,  629 

cases  stated  relating  to  connecting  papers  to  show  the  contract, 

and  to  what  extent  parol  evidence  is  admissible  therefor      .  ii.  629-673 


762  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

KOTE   OR   MEMORANDUM   IN   WRlTmG  — (Continued). 

one  of  the  principals  cannot  be  the  other's  agent  to  sign  the 

writing 11.  672 

omission  in  the  auctioneer's  book  of  the  conditions  of  sale  Is  fatal 

unless  supplied  by  other  writings 11.  672 

under  the  Mississippi  Statute  of  Frauds,  a  verbal  agreement  that 

goods  shall  be  taken  as  payment  on  a  mortgage,  passes  no  prop- 
erty in  the  goods ii.  673 

where  a  notice  is  required  by  statute  to  be  in  writing,  no  other 

form  of  notice  will  answer il.  674 

construction  of  U.  S.  Act  requiring  government  contracts  to  be 

in  writing 11.  674 

NOTICE,  ACTUAL  AND  CONSTRUCTIVE.     (See  Estoppel  ;  Fraud  ; 

Lis  Pendens.) 
ORDER  AND   DISPOSITION. 

goods  are  not  in  the  order  and  disposition  of  agent  as  reputed 

owner,  where  he  has  them  In  his  possession  as  agent  for  his 

principal 1.  545-547 

as  to  reputed  ownership ii.  547 

OWNERSHIP  PRO   HAC   VICE.     (See  Ship-Master.) 
PARENT   AND   CHILD.     (See  Fiduciary  Relations;  Infant; 
Married  Women  ) 
infant  parent  liable  on  his  contract  for  necessaries  supplied  his 

minor  child 1.110-116 

on  his  express  contract,  but  only  on  his  implied  contract  as  an 

adult  would  be  so  liable 1.  110-116 

authorities  differ  as  to  liability  of  parent  for  necessaries  for  child       1.  Ill 
but  weight  of  authority  Is  that  parent  not  so  liable  unless  by  his 

authority  or  assent i.  111-116 

except  by  proceedings  under  the  statute  of  Elizabeth     ....       1.  112 

law  now  thus  well  settled  in  England i.  112 

much  conflict  on  the  subject  in  this  country 1.  112 

Kent  and  Parsons  state  the  law  as  differing  from  that  in  England; 

Schouler  contra 1.  112 

American  authorities  fully  stated i.  113-116 

weight  of  authority  here,  as  in  England,  is,  that  father  not  liable 

unless  by  express  promise  or  under  circumstances  from  which 

promise  can  be  inferred 1.  113-116 

unless  such  promise  is  expressed  or  can  be  inferred  from  the  facts, 

parent  not  liable  where  he  gives  no  authority,  and  enters  into 

no  contract 1.  116 

Kent's  conclusion  rests  on  misreading  of  two  English  cases  and 

an  overruled  New  York  case 1.  116 

slight  circumstances  may  show  parent's  assent 1.  116 

but  without  request  or  assent  express  or  implied,  action  will  not 

lie  against  parent  on  subsequent  promise 1.  116 

promise  may  be  implied  where  necessaries  furnished  infant  on 

his  father's  credit,  where  infant  living  with  father  and  receiving 

necessaries  with  knowledge  and  without  objection      ....       1.  116 
but  an  express  subsequent  promise  to  pay  for  medical  services  to 

an  adult  son,  not  binding 1.  116 

nor  is  implied  promise  raised  by  physician  attending  adult  son  at 

father's  residence  by  request  of  latter 1.  116 


ANALYTICAL   INDEX.  763 

[References  are  to  both  text  and  notes.] 

PARENT   AND   CUILD  ^  (Con/inued). 

agency  only  ground  of  liability  of  father  for  purchases  of  son 

after  coming  of  age !•  H^ 

father's  general  order  in  favor  of  daughter  makes  him  liable  for 

her  purchases  beyond  actual  necessaries i-  HG 

parent  has  been  allowed  for  maintenance  of  his  child  out  of  the 

latter 's  separate  estate i.  116 

but  holding  generally  otherwise  except  where  father  indigent      .       i.  116 

and  then  authority  as  guardian  should  be  obtained i.  116 

stepfather  appointed  guardian  to  his  stepson  allowed  for  latter's 

maintenance  both  before  and  after  appointment 1.  117 

contract  of  father  to  pay  board  for  adult  idiot  son  inferred  from 

circumstances i-  146 

when  wife  justifiably  leaves  husband,  without  his  objection,  tak- 
ing minor  children  with  her,  implied  that  husband  is  liable  for 
support  of  children  as  well  as  wife i.  183 

but  not  liable  for  support  of  children  when  taken  against  his  will, 

he  being  willing  to  support  them i.  183,  184 

cases  of  alimony  granted  for  support  of  children  with  mother      .       i.  186 
PARTNERSHIP. 

as  between  partners  uberrima  fides  required i.  342 

as  partners  occupy  a  fiduciary  relation,  the  purchase  by  one  of  the 
firm  of  the  interest  of  his  deceased  partner  therein  was  set 

aside i.  459 

What  Constitutes  a  Partnership 1.  467^82 

in  partnership  the  ostensible  partners  are  each  principals  and 

agents  of  each  other i.  467 

the  law  of,  is  a  branch  of  the  law  of  principal  and  agent   .     .     .       i.  467 

common-law  cases  based  on  sharing  profits  as  only  test,  un- 
sound     i.  467 

civil  law  otherwise,  and  sounder i.  467 

profits  only  consequence,  not  cause  of  partnership i.  467 

old  tests  based  only  on  profits  unsound i.  467, 468 

law  in  Cox  v.  Hickman  brought  back  to  sound  doctrine  of  the 

civil  law i.  468,  469 

the  test  as  to  whether  one  is  a  partner  is  as  to  whether  the  trade 

is  carried  on  for  him  as  principal      ...  i.  468 

parties  participate  in  profits  who  clearly  are  not  partners    .     .    i.  468,  469 

co-owners   are  not  co-partners,  but  may  be  entitled  to  profits 

from  the  use  or  hire  of  the  common  property i.  469 

payment  of  a  share  of  the  profits  does  not  of  itself  constitute  the 

receiver  a  partner i.  469,  470 

business  carried  on  to  pay  creditors  out  of  the  profits  does  not 

make  the  creditors  partners i.  470,  471 

the  question  is,  whether  the  one  who  is  to  receive  the  profits  is  a 

principal  in  the  business  or  not i.  472 

if  those  carrying  on  the  business  are  his  agents,  then  he  as  princi- 
pal is  a  partner i-  472 

even  under  the  old  cases  one  might  receive  a  share  of  profits 

as  wages  and  not  be  a  partner i-  473 

statement  in  late  English  case  inaccurate,  that  no  case  has  decided 

that  sharer  in  both  profit  and  loss  may  not  be  a  partner  ...       i.  473 
Cox  V.  Hickman,  in  effect,  was  such  a  case i.  473 


764  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  note&.l 

PARTNERSHIP—  (Co/i/ume(i). 

so  co-owners;  clerks  receiving  share  of  profits  as  wages,  and 
whalers  receiving  a  "lay  "  of  the  oil,  all,  wholly,  or  to  an  ex- 
tent, share  the  losses i.  473 

so  one  may  not  share  losses  and  yet  be  a  partner i.  474 

agency  in  partnership  tested  as  in  other  cases  of  principal  and 

agency       i.  474 

principle  of   Cox  v.   Hickman  misstated  in  English  and  Irish 

cases i.  474,  47.') 

to  constitute  partnership,  not  necessary  that  each  should  be  a 

principal  and  each  the  agent  of  the  other i.  474-47tj 

the  test  is  as  to  whether  the  ostensible  partners  are  carrying  on 
business  as  the  partners  and  agents  of  the  one  sought  to  be 
charged  as  a  partner  with  them i.  475-478 

not  necessary  that  he  should  be  acting  as  their  agent      .     .     .    i.  476-478 

participation  in  profits  is  one  factor  in  deciding  as  to  whether  the 
party  receiving  them  is  a  principal  or  not  in  the  business,  — 
whether  it  is  carried  on  in  his  behalf i.  478 

the  being  paid  out  of  profits,  with  an  express  provision  that  the 
payee  is  to  bear  the  losses,  does  not  necessarily  make  him  a 
partner i.  477,  478 

case  in  England,  decided  before  Cox  v.  Hickman,  decided  on  sub- 
stantially the  same  basis i.  47S 

case  in  New  Brunswick,  in  effect,  similarly  decided i.  479 

but  a  more  recent  case  there  badly  decided,  acting  on  the  principle 

of  overruled,  badly  decided  cases      .     .  • i.  479 

policy-holders  held  not  liable  as  partners  though  participating  in 

profits  and  incidentally  in  loss i.  479,  480 

participation  in  net  proceeds  of  business  intended  as  security 
does  not  make  the  party  a  partner,  where  the  participant  and 
the  ostensible  partners  are  not  principal  and  agents    ....       i.  480 

party  holding  himself  out  as  partner  may  be  liable  as  such  by 

estoppel i.  480 

if  parties  are  really  partners,  no  declaration  otherwise  will  prevent 

them  being  so i.  480 

•whether  such  relation  exists  depends  on  the  intention  and  con- 
tract of  the  parties i.  480 

where,  as  in  the  cases  of  seamen,  clerks,  and  others,  though 
these  parties  participate  in  the  net  profits,  the  relation  of  mas- 
ter and  servant  and  not  principal  and  agent  exists,  the  parties 
are  not  partners i.  480 

intention  and  contract  of  parties  makes  them  partners  although 

expressly  declaring  that  they  are  not  partners i.  481 

where  an  express  agreement  to  share  in  both  profits  and  losses, 
held  that,  under  the  agreement,  one  was  the  servant  and  not 
the  partner  of  the  other,  and  was  denied  the  usual  remedies 
of  a  partner i.  481,  482 

part-owners  in  ships,  too,  share  in  profit  and  loss,  and  are  not 

partners,  their  liability  being  quite  different i.  482 

so  also  as  to  shareholders  in  companies i.  482 

English  Partnership  Amendment  Act i.  482-485 

is,  like  many  other  acts,  little  more  than  a  declaration  or  aflSrma- 
tion  of  the  common  law i.  482,  483 


ANALYTICAL   INDEX.  765 

[References  are  to  both  text  aud  notes.] 

PARTNERSHIP—  (Conthmed). 

principles  of  the  law  remain  the  same  as  before  the  passage  of 
that  act •      i  483 

the  act  does  not  apply  where  the  contract  constitutes  the  parties 

partners,  as  before  the  passing  of  the  act i-  483 

it  relates  to  debtors  and  creditors,  as  before,  where  there  is  a  par- 
ticipation in  the  profits  but  not  a  partnership i.  483 

usual  tests  as  to  agency  apply  to  the  act  in  order  to  fix  the  rela- 
tionship between  the  parties i-  484 

so,  notwithstanding  the  act,  where  a  loan  is  a  mere  pretence,  and 
the  lender  is  really  the  principal  of  the  ostensible  partners,  the 

parties  are  partners i-  485 

Application  of  Agency  Rules  to  Partnership i-  485-492 

partners  being  principals  and  agents,  the  general  rules  of  agency 

apply  to  them i-  486 

rules  as  to  general  and  special  agents  apply  to  partners  ....       i.  486 

these  stated i-  486 

so  rules  as  to  appointment  and  powers  of  an  agent  apply  to  the 

creation  and  powers  of  a  partner i-  486 

so  as  to  holding  one  out  as  an  agent  or  a  partner i.  486,  487 

one  so  holding  out  another  is  liable  within  scope  of  the  agency  or 

the  partnership i-  487 

so  as  declarations  of  agency  by  one  claiming  to  be  an  agent,  as 
to  agency  and  scope,  do  not  bind  another  as  principal,  so  simi- 
lar statements  do  not  bind  the  other  as  partner i.  487 

the  same  principle  applies  as  to  the  rules  of  evidence  of  an  agency 

and  a  partnership i-  487 

New  Brunswick  case  to  the  contrary  not  law .       i.  487 

.  cases  on  the  subject  examined i.  487-492 

one  buying  goods  on  his  own  account,  and  used  by  him  in  joint 
transactions  wdth  another,  vests  no  property  in  such  goods  in 
the  other  as  a  partner i-  488 

and  where  no  property  in  the  goods  passes  to  the  other  by  the 

purchase,  he  is  not  liable  to  the  seller i.  488 

the  New  Brunswick  case  is  opposed   to   all   the  principles  of 

agency i.  489-492 

decided  on  entire  misconception  of  the  law i.  490 

the  question  is  one  of  authority,  of  agency;  the  law  as  to  agency 

being  applicable  to  show  the  authority i.  492 

thus  parol  evidence  is  inadmissible  to  control  written  evidence    .       i.  492 

the  badly  decided  New  Brunswick  case  expressly  holds  the  con- 
trary       ' i.  489-492 

Partnership  Purchases  and  Sales i.  488-r)O0' 

leading  case  of  Cox  v.  Hickman  relates  to  this i.  489-493 

creditors  of  a  firm  for  whose  benefit  the  business  is  carried  on  not 

liable  on  bills  of  the  firm,  nor  for  their  purchases  of  goods  .    i.  492,  493 

so  inspectors  carrying  on  business  for  a  firm  in  the  firm  name  are 

not  liable  for  goods  bought  for  the  firm i.  49? 

so,  where  an  assignment  is  made  to  trustees,  and  the  debtor 
makes  purchases  in  his  own  name,  the  trustees  are  not  liable 

as  partners  or  principals i-  493 

the  ostensible  partners  are  the  agents  and  representatives  of  the 

partnership  within  its  scope i.  493 


766  ANALYTICAL   INDEX. 

[References  are  both  to  text  and  notes.] 
PARTNERSHIP  —  (  Continued) . 

and  each  is  liable  for  the  fraud  of  the  other  within  scope  of  the 

partnership,  particularly  where  they  all  participate  in  the  fruits      i.  494 
sole  surviving  partner  can  assign  partnership  assets  and  create 

preferences i.  494 

purchases  by  partners  will  not  bind  their  copartners  without  the 

scope  of  the  partnership i.  494-49G 

where  a  partnership  exists,  on  its  being  closed  up  the  good-will 

is  the  subject  of  sale i.  496,  497 

one  partner  may  sell  his  interest  in  a  firm,  but  not  so  as  to  make 

the  purchaser  a  member  of  the  firm i.  497 

where  parties  hold  themselves  out  as  partners,  they  are  liable  as 

such,  although  carrying  on  business  as  a  corporation   ....       i.  497 
but  a  lien  on  partnership  property  may  be  lost  by  its  being 

merged  into  the  property  of  a  corporation i.  497,  498 

where  after  dissolution  of  a  firm  its  business  is  still  carried  on, 

the  partnership  lien  of  the  retiring  partner  does  not  attach,  as 

against  creditors,  to  new  purchases i.  497 

principles  governing  such  cases i.  497,  498 

agreeing  that  another  shall  have  a  share  of  profits,  not  constitut- 
ing a  partnership,  works  no  transmission  in  the  property  of  the 

firm  so  as  to  void  a  policy i.  499 

mere  participation  in  the  profits  does  not  pass  an  interest  in  the 

property  contrary  to  the  intention  of  the  parties i.  499 

the  holding  of  one's  self  out  as  partner  only  inures  to  the  benefit 

of  those  contracting  with  the  firm  on  the  faith  thereof    ...       i.  499 
the  holding  out  must  be  by  the  party  himself  or  by  his  authority, 

and  to  the  party  contracting  with  relation  to  it i.  500 

community  of  interest  may  create  partnership  liability  ....       i.  499 
a  partner  may  allow  his  copartner  to  use  firm  funds  to  pay  his 

individual  debts,  and  his  creditors  be  concluded  thereby       .     .       i.  500 
a  manager  of  a  mine,  any  more  than  the  creditors  of  a  firm,  does 

not  become  a  partner  by  being  paid  out  of  profits   .     .     .     .    i.  500,  501 

Fiduciary  Relations  of  Partners i.  501-506 

as  far  as  they  occupy  this  position,  the  law  as  to  trustees  and 

cestuis  que  trust  applies  to  them i.  501 

fiduciary  principles  relating  to  agents  as  to  buying  their  own  goods 

for  their  principal,  and  purchasing  their  principal's  goods,  apply 

to  partners i.  501-503 

the  general  relations  in  partnership  of  trust  and  confidence  are 

governed  by  the  principles  applicable  to  fiduciary  relations     i.  502,  503 
transactions  between  partners  must  be  with  full  revelation ;  one 

cannot  gain  an  advantage  over  his  partner  through  the  latter's 

ignorance !•  502 

advantages  unfairly  gained  by  one  partner  inure  to  the  firm    .     .       i.  503 
will  be  closely  scrutinized,  and  where  contrary  to  good  faith  will 

be  corrected  by  the  court i-  503 

one  partner  may  buy  from  another,  or  buy  the  other's  interest  in 

the  firm,  but  only  on  terms  of  strictest  good  faith       .     .     .    i-  503,  504 
and  a  partner  must  subordinate  his  own  interest  to  that  of  the 

firm i-  504 

principles  governing  transactions  between  partners  and  with  ref- 
erence to  the  partnership  property i.  504,  505 


ANALYTICAL   INDEX.  767 

[References  are  to  both  text  and  notes.] 

PARTNERSHIP  —  (Continued). 

mining  association  not  strictly  a  partnership,  the  dilectus  personce 
being  wanting,  and  the  rules  as  to  fiduciary  relations  do  not 
so  strictly  apply i.  505,  506 

principles  governing  such  associations i.  505,  506 

PASSING  OF  PROPERTY  IN  GOODS.  (See  Bailment;  Pledge; 
Sale  ) 

governed  by  intention  of  parties,  not  necessarily  by  such  inci- 
dents as  weighing  or  not  weighing,  etc i-  7 

banks  taking  receipts  for  grain  not  delivered  by  them  passes  no 

property  in  any  specific  grain  held  by  the  receiptor    ....         1.  15 

it  amounts  to  no  more,  at  most,  than  an  agreement  to  deliver  the 

quantity  receipted  for i.  15 

■where  property  in  goods  passed  absolutely  for  a  price,  a  sale  and 

not  a  trust i.  18 

where  goods  are  to  be  sold  on  price  being  agreed  on,  and  this 

not  done,  no  property  passes 1.  18 

where  goods  are  concealed  in  other  goods  sold,  no  property  passes 

in  the  hidden  goods  where  no  intention  so  to  do i.  24 

Blackburn's  statement  that  property  cannot  pass  in  goods  until 
the  parties  ai'e  agreed  on  the  specific  individual  goods,  ques- 
tioned          i.  27 

no  property  passes  in  goods  wrongfully  taken  by  one  from  a  pub- 
lic river  to  enable  him  to  maintain  trover  against  a  purchaser 
under  2  &  3  Vic.  c.  71 i.  27 

distinguishing  sale  from  bailment,  there  must,  in  the  former,  be 

intention  to  pass  absolute  property i.  92 

where  property  actually  passes  in  goods,  even  though  the  parties 

say  it  shall  not,  it  does,  and  is  a  sale i.  96,  97 

so,  where  the  agreement  that  it  shall  not  pass  is  colorable  ...         i.  97 

but  when  made  in  good  faith  so  that  loss  by  fire  or  sale  is  in 

deliverer,  the  property  does  not  pass i.  98 

even  though  agreement  may  provide  for  subsequent  passage  of 

property  on  payment i.  98 

where  sale  made  to  be  converted  into  a  bailment,  property  passes 

to  vendee i.  98 

where  property  in  securities  passed  with  right  of  redemption,  if 
right  not  exercised  in  agreed  time  property  becomes  absolute 
in  holder  of  securities i.  98 

but  where  property  is  only  to  pass  on  payment  being  made,  prop- 
erty only  then  vests i.  98 

where  sale  actually  made  property  passes,  though  the  agreement 
be  otherwise ;  but  where  no  transmission  of  property  there  is 
no  sale 1.    98 

property  passes  in  goods  on  election  when  bailee  holds  them  with 

power  to  elect  to  turn  to  sale 1.  100 

in  bailment,  only  a  special  property  in  bailee i.  101 

absolute  property  in  goods  does  not  pass  to  pledgee  under  assign- 
ment of  bill  of  lading  as  pledge  so  as  to  make  him  liable  for 
freight i.  103 

pled<ree  has  no  power  to  pa?s  absolute  property  in  pledge    ...       i.  106 

usually  agents  can  only  confer  such  title  as  they  are  authorized 

to  convey i.  60 


768  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

PASSING   OF   PROPERTY   IN    GOODS  —  (Continued). 

where  agents  sell  without  due  authority  no  property  passes     .     .       i.  100 

otherwise  where  intrusted  with  indicia  of  right  to  sell  ....       i.  1(IG 

special  property  may  be  vested  by  assignment  of  indicia  of  own- 
ership, as  bill  of  lading  as  security i.  107 

where  property  is  only  to  pass  on  condition,  where  the  condition 

is  not  performed  no  property  passes i.  107,  lOS 

(See  Gifts.) 

property  in  goods  does  not  necessarily  pass  because  shipped  "  free 

on  board  " i.  108 

some  English  decisions  contra,  unsound i.  108 

in  Missouri,  a  married  woman  has  the  jus  disponendi  of  her  sep- 
arate property  as  feme  sole i.  239 

where  goods  were  bought  in  Tennessee  by  husband  as  agent  for 
wife,  for  which  she  was  not  liable,  no  property  passed,  and 
vendor  could  reclaim  goods;  but  other  goods  of  wife  not 
charged  with  the  liability i.  246 

ship-master,  in  extreme  cases,  can  pass  title  to  ship  and  cargo      .       i.  219 

when  ship-master  makes  sale  without  necessity,  property  does  not 

pass i.  253 

where  cargo  of  ship  can  be  saved  for  benefit  of  owner,  on  loss  of 
ship,  unnecessary  sale  by  master  passes  no  property  in  cargo 
as  against  owner  or  underwriters .     .   i.  276,  277 

where  property  in  a  ship  passes  to  purchaser  under  sale  by  master 
as  agent  of  necessity,  liens  against  her  do  not  continue  to 
attach i.  281 

the  liens  are  transferred  to  the  proceeds  of  ship i.  281 

when  master  makes  justifiable  sale  of  foreign  vessel,  title  passes 

to  purchaser  without  necessity  for  bill  of  sale i.  289 

law  of  the  United  States  requiring  the  register  to  be  inserted  in 

the  bill  of  sale  applies  only  to  American  ships i.  290 

it  has  no  application  to  foreign  vessel  sold  by  the  master  by  ne- 
cessity    i.  290 

owners  of  ship  are  not  responsible  for  supplies  after  property  in 

ship  has  passed  from  them i.  291 

unless  constituted  agent  or  necessity  arises,  master  has  no  power 
from  mere  possession  to  pass  title  to  goods  in  ship,  and  his  sale 
passes  no  title i.  292 

where  master  reships  goods  to  his  own  order,  and  his  agent  sells 
them,  no  property  passes  to  purchaser,  though  paying  bond  Jxde 

price  for  them i.  293 

(See  Ship-Masters.) 

no  property  in  goods  passes  to  agent  by  his  buying  them  for  his 

principal i-  545-517 

fraudulent  sale  is  voidable,  but  cannot  be  avoided  where  goods  in 

hand  of  innocent  third  party,  where  the  property  has  passed  i.  549-550 

but    otherwise    where    no   property   passed   to   the   defrauding 

party i.  549-550 

bill  of  lading  signed  before  goods  received  is  fraudulent  and  void, 

and  passes  no  property  in  the  goods ii-  8 

where  an  article  is  made,  appropriated,  and  the  appropriation  is 

assented  to,  the  property  passes ii.  253-256 

(See  Work  and  Lakok.) 


ANALYTICAL   INDEX.  769 

[References  are  to  both  text  and  notes.] 

PASSING    OF   PROPERTY   IN    GOODS-  (Continued). 

the  property  in  the  goods  purchased  does  not  necessarily  pass  by 

the  payment  of  earnest ii.-311 

(See  Earnest  or  Part  Payment.) 

the  property  does  not  pass  as  long  as  the  contract  remains  imper- 
fect and  executoiy ii.  311 

PAYMENT.    (See  Accord  and  Satisfaction;  Action;  Money;  - 
Sale.) 

for  goods  sold  may  be  by  a  pre-existing  indebtedness,  as  by 

seller's  promissory  notes  held  by  buyer i.  18 

may  be  by  paying  over  to  seller's  creditors,  or  to  seller  balance 

over  seller's  indebtedness,  and  yet  be  a  sale  and  not  a  trust      .         i.  18 

Confederate  bonds  accepted  as  payment  held  payment   ....         i.  31 

so  as  to  payment  in  goods i.  31 

in  Rhode  Island,  under  Married  Women's  Acts,  wife  entitled  to 
payment  of  husband's  note,  held  by  her,  out  of  husband's 
estate i.  229 

and  in  Maine,  as  payment  of  his  note,  he  may,  bond  fide,  convey 

real  estate  to  her i.  229 

where  a  lien  exists  against  a  ship  for  supplies,  drafts  are  only 
conditional  payment,  and  on  their  non-payment  lien  can  be 
enforced .       i.  282 

payment  on  calls  of  unauthorized  stock  not  set  off  in  bankruptcy 

against  calls  on  authorized  stock i   391 

purchaser  from  agent  as  such  cannot  write  off  claim  against  agent 

as  payment i.  577 

(See  Principal  and  Agent.) 

under  usual  authority  to  agent  to  receive  jjayment  of  debt,  he 

should  receive  it  only  in  money i.  58^* 

auctioneer  who  has  only  power  to  sell  for  cash  cannot  discharge 

purchaser  by  taking  bill  of  exchange i.  59:> 

but  power  to  take  payment  in  bill  may  be  implied  from  common 

practice i.  593 

goods  as  earnest  or  part  payment  satisfies  the  Statute  of  Frauds 

and  analogous  statutes ii.  250-275 

(See  Barter.) 
PENDENTE   LITE.     (See  Lis  Pendens  ) 

rules  governing i.  382-385 

PLEADING.     (See  Action  ;  Indebitatus  Assumpsit.) 

in  legal  strictness,  in  a  special  action  on  the  case,  an  averment  of 

a  sale  is  not  supported  by  proof  of  exchange i.  24 

PLEDGE.     (See  Bailment;  Factors'  Acts.) 

assignment  of  bill  of  lading  as  pledge  does  not  pa.ss  "  the  prop- 
erty in  the  goods  "  to  pledgee  so  as  to  make  him  liable  for 
freight  under  the  Bills  of  Lading  Act i.  103 

general  property  remains  in  pledgor,  only  special  property  in 

pledgee i.  103 

property  vests  in  pledgee  sufficient  to  secure  debt i.  104 

pledgee  by  improper  conversion  of  pledge  does  not  cause  it  to 

revest  in  pledgor i.  104 

nor  will  trover  lie  for  such  conversion i.  104 

pledgee's  engagement  is  to  restore  pledge  on  debt  being  paid  .     ,       i.  105 

VOL.  II.  49 


770  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

PLEDGE  —(Continued). 

pledgee  can  repledge  the  goods,  but  not  for  greater  interest  than 

he  possessed i-  105 

pledgor  can  convey  his  interest  to  third  party i.  104 

if  pledgee  repledge  goods  for  greater  than  his  interest,  pledgor 
on  tendering  sum  secm'ed  is  entitled  to  possession  of  goods 
from  holder i.  105 

and  can  recover  any  special  damage  from  his  pledgee     ....       i.  105 

differs  from  a  lien,  which  is  a  mere  personal  right  of  detention, 

not  transferable i.  105 

assignee  of  pledgee  obtains  all  assignor's  legal  rights       .     .     .    i.  105, 106 

pledgee  can  use  pledge  subject  to  damage  caused  thereby,  his 
lien  remaining  intact i.  106 

power  to  sell  does  not  include  power  to  pledge i.  106 

though  purchaser,  where  power  to  sell,  may  obtain  title  against 

owner,  this  does  not  apply  to  pledge i.  lOG 

where  property  held,  without  power  either  to  sell  or  pledge,  was 

sold,  title  did  not  pass i.  106,  107 

pledgor  to  recover  pledge  from  pledgee,  or  his  assignee  must  ten- 
der amount  of  his  debt i.  107 

possession  being  essence  of  pledge,  without  it,  actual  or  construc- 
tive, pledge  cannot  be  supported  against  third  parties      ...       i.  107 

one  taking  stock  as  a  pledgee  is  estopped  by  the  transfer  from 

denying  his  liability  as  stockholder i.  396 

PRESIDENT   OF   COMPANY.     (See  Corporation;   Diukctors 
OF  Companies;  Fiduciary  Relations;  Stockholders.) 
PRESUMPTION.     (See  Married  Women.) 

where  wife  buys  property,  presumption  is  that  it  was  bought 

with  her  husband's  funds,  unless  otherwise  shown i.  220 

presumption  of  title  where  possession  does  not  apply  as  between 

husband  and  wife,  possession  with  them  being  usually  joint    .       i.  220 

presumption  of  husband's  ownership  rebutted  under  Married 
Women's  Acts,  where  business  openly  carried  on  by  wife  in 
her  own  name i-  2-0 

but  not  by  wife  keeping  at  home  joint  earnings  of  themselves, 

children,  and  servants i-  221 

in  Texas,  the  presumption  is  that  all  property  acquired  by  hus- 
band or  wife  is  community  property,  and  burden  to  prove  it 
wife's  separate  estate  is  on  party  so  claiming i.  221 

so  there  held,  where  wife's  separate  property  is  mingled  with  com- 
munity property,  burden  of  proof  is  on  wife  to  show  her  sep- 
arate property i-  222 

but  under  AVisconsin  statute  as  wife  may  deal  with  her  husband, 
burden  on  her  is  to  show  property  purchased  by  her  was  for  ade- 
quate consideration,  then  burden  on  party  attacking  to  show 
conveyance  in  fraud  of  creditors i-  222 

under  Pennsylvania  acts  presumption  of  ownership  is  as  at  com- 

mon  law i-  — ■•-' 

in  Louisiana,  presumption   is   that  property  purchased  during 

coverture  is  community  property i-  223 

this  presumption  rebutted  by  showing  purchase  as  wife's  separate 
property  by  her  paraphernal  funds,  and  thereafter  treated  as 
her  own !•  2-i 


ANALYTICAL   INDEX.  771 

[References  are  to  both  text  and  notes.] 

PRESUMPTION  —  (  Continued) . 

no  presumption  of  fraud  from  husband  giving  his  services  to 

wife  in  the  conduct  of  her  separate  business i.  227 

right  to  trade  by  a  married  woman  in  Pennsylvania  does  not 

change  burden  of  proof  to  show  ownership i.  232 

under  Married  Women's  Acts  a  wife  may  sell  or  loan  her  sep- 
arate property  to  her  husband,  or  constitute  him  her  agent 
to  manage  it  for  her,  but   a  gift  of  it  to  him  will  not  be 

presumed i.  235 

where  money  supplied  to  ship-master  by  foreign  lender,  the  pre- 
sumption is  that  bottomry  security  was  contemplated,  the  pre- 
sumption being  strengthened  where  lender  can  arrest  ship  for 

his  demand i,  254 

where  necessaries  are  furnished  ship  in  a  foreign  port,  the  pre- 
sumption is  that  the  credit  was  given  to  the  ship  and  not  to 

the  owners i.  273 

or  to  the  ship  as  well  as  to  the  owners i.  281 

this  presumption  is  rebutted  by  showing  that  the  credit  was  not 

necessary i.  282 

presumption  of  non-payment  of  coupons  raised  by  their  being  un- 
paid in  hands  of  holder i.  400 

presumption  of  ownership  of  stock  arises  from  name  being  on 

book,  receipt  of  dividends,  etc i.  402 

presumption  that  agents  of  insurance  company  giving  credit  is 
known  to  the  company,  under  notice  that  the  agents  stood 

chargeable  therewith i.  589,  590 

presumption  as  to  checks  and  drafts  signed  by  officers  of  com- 
pany  i.  600 

presumptions  are  of  law,  and  of  fact,  and  mixed ii.  206,  207 

PRICE.     (See  Action;    Indebitatus  Assumpsit;    S.\le  ) 

where  there  is  a  contract  as  to,  the  terms  govern  though  the 

action  be  in  indebitatus  assumpsit i.  13 

where  goods  sold  at  a  price,  payable  in  other  goods,  held  a  sale, 

and  that  indebitatus  assumpsit  will  lie  as  for  money       ....         i.  13 
and  where  a  price  not  fixed,  the  transaction  is  not  thereby  less  a 

sale,  sustaining  a  quantum,  valebat  count  for  the  goods  delivered         i.  14 
bnt  though  a  price  is  stated,  if  it  is  the  manifest  intention  of  the 

parties  that  the  property  shall  not  pass,  there  is  no  sale  ...         i.  16 
the  fixing  of,  is  sometimes  made  the  distinction  between  sale  and 

barter 1.  16,  17 

where  a  price  was  agreed  upon,  connected  with  other  facts,  it 
was  held  that  there  was  a  sale  of  hides,  where  they  were  to  be 
tanned  and  their  product  returned  to  the  original  owner      .     .    i.  16,  17 
price  held  to  be  an  ingredient  to  show  a  sale  of  goods  rather  than 

a  trust  requiring  no  fixing  of  price i.  18 

where  goods  to  be  sold  if  price  agreed  on,  and  this  not  done,  no 

property  passes  and  there  is  no  sale i.  18 

price  is  the  equivalent  or  compensation  in  whatever  form  received  1.  18 
goods  received  for  goods,  held  to  be  price  under  act  of  Congress  1.  19 
property  may  be  the  price  of  other  property,  or  of  labor  .  .  .  i.  20,  21 
where  sale  of  goods,  with  privilege  of  return,  buyers  agreeing  to 

pay  named  price,  shows  sale i.  100 

(See  Note  or  Memorandum  in  Writing.) 


772  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes  ] 

PRINCIPAL  AND  AGENT.     (See  Agexts  of  Necessity;  Con- 
signees;   Directors   of  Companies:   Factoks'  Acts; 
Fiduciary   Relations;   Married  Women;   Mixing  of 
Goods  ;    Ship-Masters.) 
an  agent  to  sell  only  has  no  power  to  barter  goods,  and  if  he  do 

the  principal  can  maintain  trover  for  them i.  29 

third  party  receiving  gift  mortis  causa  for  donee,  not  his  agent  but 

trustee i.  87 

agent  bound  to  exercise  due  care  and  diligence  in  performing 

task  undertaken,  and  liable  for  not  doing  so i.  102 

as  for  improperly  delivering  principal's  goods  so  as  to  cause  loss 

to  principal i.  102 

bailee's  duty  and  liability  not  the  same  as  those  between  prin- 
cipal and  agent i.  102 

where  agent  sells  goods  against  authority,  principal  may  disaffirm 

sale  and  recover  goods i.  106 

but  principal  bound  where  agent  intrusted  with  indicia  of  right, 

though  principal's  secret  instructions  violated i.  106 

usually  agents  can  only  confer  such  title  as  they  are  authorized 

to  convey i.  60 

(See  Railway  Freight  Receipts.) 
where  father  gives  daughter  general  order  for  what  goods  she 

wants,  he  makes   her  his  agent  to  get  goods  beyond  actual 

necessaries i.  116 

only  ground  of  father's  liability  for  purchases  of  son  of  full  age  is 

on  ground  of  agency,  express,  or  implied i.  116 

wife's  power  to  bind  her  husband  by  confract  is  that  of  agency        i.  l-'iO 

(See  Married  Women.) 
when  compelled  to  leave  him  for  his  misconduct  she  can  bind 

him  for  necessaries  as  agent  of  necessity i.  159-1  f>5 

agency  of  wife  revoked  by  insanity  of  husband i.  10i» 

but  not,  without  notice  to  those  to  whom  she  has  been  held  out 

by  him  as  agent i.  190 

in  Pennsylvania,  earnings  from  business  transferred  from  husband 

to  wife,  and  carried  on  by  him  as  her  "  agent,"  held  his  and  not 

hers i.  223 

but  a  husband  may  act  there  as  her  agent  in  investing  her  money, 

and  in  buying  and  selling  for  her,  without  property  vesting  in 

him  .     .  ' i.  226 

where  fraudulent  representations  made  by  company  to  husband 

as  agent  for  wife,  on  bill  filed  to  set  aside  sale  of  stock,  she  is 

not  estopped  by  the  acts  of  her  husband  in  expending  the  money 

while  in  subsequent  employment  of  the  company i.  226 

husband  may  be  wife's  agent  for  managing  her  property  ...       i.  227 
wife  not  liable,  without  proof  of  agency,  where  husband  signs  her 

name  to  negotiable  paper i.  22S 

but  what  the  statutes  permit  her  to  do  in  person  she  can  do  by 

another,  husband  or  other,  as  agent i.  231 

and  when  taking  benefit  from  husband's  fraudulent  acts,  as  agent 

for  her,  she  is  affected  by  the  fraud i.  231 

husband  held  to  have  made  arrangements  for  washing  by  his  wife 

as  her  agent,  in  Massachusetts,  that  work  being  there  protected 

bv  statute       i.  23-) 


ANALYTICAL    INDEX.  773 

[References  are  to  both  text  and  notes.] 

PRINCIPAL   AND    AGEJUT— {Continued). 

where  statutes,  as  in  Mississippi,  constitute  husband  wife's  agent, 
where  record  not  contra,  his  contracts  as  agent,  within  scope 
of  act,  bind  her  as  principal,  and  if  agency  undisclosed  she  is 
liable  as  undisclosed  principal i.  244 

and  for  goods  bought  within  his  apparent  power  notwithstanding 

subsequent  misappropriation i.  245 

where  in  Tennessee  husband  purchased  goods  as  agent  for  wife, 
for  which  she  was  not  liable,  no  property  passed,  and  vendor 
could  reclaim  goods,  but  other  goods  of  wife  not  charged  with 
liability i.  246 

ship-master  is  always  agent  for  the  ship,  and  in  special  cases  of 

necessity  is  agent  for  the  cargo i.  257 

he  is  the  appointed  agent  to  the  ship,  the  involuntary  agent  of 

cargo i.  257 

•where  ship-masters  held  out  by  owners  as  their  agent,  they  are 
liable  under  his  contract  for  repairs  and  equipment  for 
vessel i.  273 

where  master  makes  sale  without  necessity,  and  not  as  agent  of 

charterers,  they  are  not  liable  for  his  acts i.  274,  275 

where  the  managing  owner  of  a  ship  is  not  agent  to  bind  another 
owner  of  ship  for  necessaries,  and  is  not  held  out  as  such  agent, 
the  other  owner  is  not  liable  for  necessaries  purchased  by  the 
managing  owner i.  288 

owners  of  ship  are  not  liable  for  supplies  to  ship  or  master  fur- 
nished after  their  ownership  has  ceased i.  291,  292 

where  agency  of  steward  to  buy  supplies  for  steamer  was  estab- 
lished, owners  held  bound  for  further  supplies,  though  arrange- 
ments made  otherwise  between  owner  and  steward     ....       i.  292 

same  person  cannot  act  for  himself  and  as  agent  for  another 
whose  interests  conflict,  as  purchaser  acting  as  agent  for 
seller i.  294 

the  law  will  relieve  against  transactions  by  one  acting  on  his  own 

behalf  when  agent  of  others i.  294 

directors  of  companies  and  others  in  fiduciary  relations  are  sub- 
ject to  this  rule i.  294 

where  power  exists  to  disaffirm  unauthorized  acts  of  agent,  it 

should  be  duly  exercised,  as  delay  may  amount  to  ratification       i.  295 

principals  not  agents  are  liable  on  executed  contract  where  agents 
contracted  for  and  in  name  of  principals,  and  latter  ratified 
contract i.  302 

where  one  purporting  to  act  as  agent  sells  principal  property  of 

his  own,  principal,  on  discovery,  can  rescind  contract  .     .     .     .     i.  308 

but  if  he  do  not  rescind  contract,  he  elects  to  treat  the  agent  as 
principal,  and  can  neither  recover  agent's  profits,  nor  difference 
between  price  paid  and  value i.  308-310 

where  action  does  and  where  it  does  not  lie  against  company  for 
fraud  of  its  agents i.  338-310 

the  liability  depends  upon  the  nature  of  the  agency     .     .     .     .  i.  339,  310 

equity  will  indemnify  agent  against  liability  and  loss  incurred  for 

principal .       i.  34G 

company  affected  by  fraud  of  secretary  committed  within  the 

scope  of  his  employment i.  308,  309 


774  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

PRINCIPAL    AND    AGE^^T  —  (Continued). 

when  directors  are  acting  as  agents  of  company,  and  not  officially 
as  directors,  they  may  act  separately i.  378 

bank  having  a  lien  on  its  stock  for  debt  of  holder,  may  lose  its 
.  lien  by  waiver,  or  transfer,  by  acts  of  the  cashier  as  its  agent  .       i.  389 

presumption  is  that  the  principal  officer  at  bank  has  authority  to 

allow  transfers  of  stock i.  389 

bank  is  affected  by  acts  of  cashier  in  making  unfounded  claim  of 

lien  on  stock i.  395 

officers  of  municipality  may  have  power  to  act  as  principals,  dif- 
fering from  agents  who  can  act  only  within  scope  of  agency   i.  430,  431 

agents  dealing  with  principals  occupy  a  fiduciary  relation,  and 

must  make  full  disclosure 1.  4')2 

■where  one  whose  duty  it  is  as  agent  to  prevent  his  principal's 
property  from  being  sold,  allows  it  to  be  sold  and  buys  it  him- 
self, he  holds  it  as  trustee  for  his  principal i.  457 

an  agent  must  account  to  his  principal  for  profits  made  in  his  fidu- 
ciary relation  for  principal i.  461 

and  generally  cannot  purchase  from  his  own  purchaser,  except  at 

will  of  principal,  property  entrusted  to  agent  for  sale      .     .      .       i.  462 

as  to  following  proceeds  sold  by  agents  where  fiduciary  relations 
exist i.  462 

partnership  is  based  on  agency i.  467-482 

(See  Partnership.) 
An  Agenfs  Contracts  for  a  Foreign  Principal i.  507-515 

much  confusion  in  the  cases  relating  to  agency i.  507 

Story's  statement  as  to  agents  being  liable  for  purchases  made  by 
foreign  principal  inaccurate i.  507 

the  cases  cited  by  him  do  not  sustain  him i.  507,  508 

same  principles  generally  applicable  whether  purchases  be  made 

for  home  or  foreign  principal i.  508,  509 

rather  a  matter  of  fact  as  to  local  custom  than  of  law      ....       i.  509 

■where  there  is  such  a  presumption  of  fact,  slight  circumstances 

overcome  it i.  510,  511 

where  disclosure  of  principal,  agent  no  more  liable  for  contracts 

made  for  a  foreign  than  for  a  home  principal i.  511 

custom  has  arisen  in  England  from  agents  often  being  treated  as 

commission  merchants i.  511 

Judge  Story's  doctrine  disapproved  in  this  country i.  511 

and  in  England  such  doctrine  is  generally  ignored     .....       i.  512 

Smith  in  his  Leading  Cases  abandons  the  position  stated  in  his 
Mercantile  Law  similar  to  that  of  Judge  Story i.  512 

principle  in  the  matter  accurately  laid  down  by  Bigelow,  C.  J.    i.  512-515 

the  question  depends  on  the  intention  of  the  parties,  as  in  other 

contracts i.  513-515 

the  mistake  made  in  some  of  the  cases,  and  by  Story  and  Smith, 

repeated  in  a  recent  English  case i.  515 

mistake  has  arisen  from  treating  an  intermediate  principal  as 

merely  an  agent 1.  515,  516 

Effect  of  Agents  signing  Contracts  in  their  own  names       .     .     .     .    i.  516-544 

cases  on  the  subject  in  a  very  unsatisfactory  state i.  516 

in  Paice  v.  Walker  reliance  is  to  some  extent  placed  on  the  fallacy 

as  to  foreign  principals i   516-518 


ANALYTICAL   INDEX.  775 

[References  are  to  both  text  and  notes.] 

PRINCIPAL    AND   AGENT —  (Continued). 

iij  Gadd  V.  Houghton  no  reliance  whatever  is  placed  on  that  .     .       i.  518 

former  case  disapproved  in  the  latter i.  518 

former  case  nominally  holds  that  contracting  "  as  agents,"  signed 

by  names  only  of  agents,  is  not  a  contract  as  agents    .     .     .    i.  516-518 

latter  case  holds  in  effect  the  reverse,  —  "  on  account  of  "  being 
no  stronger  than  "  as  agent  for,"  and  to  that  extent  overrules 
Paice  V.  Walker i.  518,  519 

yet  the  cases  are  reconcilable  ;  the  facts  in  the  one  case  showing 
that  the  signers  were  contracting  as  agents,  and  in  the  other  as 
principals i.  519,  520 

rules  of  law  deducible  from  these  cases .    i.  520,  521 

"  on  account  of  "  and  "  as  agents  for  "  alike  come  within  one  of 
the  rules  stated i.  521 

facts  sustaining  Paice  v.  Walker,  though  not  its  nominal  hold- 
ing     i.  521,  522 

where  "  agent,"  etc.,  used  as  descriptio  personce,  it  does  not  of 

itself  make  the  party  contracting  an  agent i.  522 

but  where  party  is  known  to  be  agent  of  another  he  does  not 

thereby  bind  himself  as  principal i.  .522 

but,  describing  himself  as  agent,  the  contract  may  be  by  him  as 

principal,  where  such  is  the  fair  construction  of  the  contract  i.  522,  523 

where  party  contracts  in  writing  as  principal,  he  cannot  show  by 

parol  that  he  disclosed  his  agency i.  523 

proper  mode  of  agent  signing  for  his  principal i.  523 

where  contract  made  by  an  agent  in  his  own  name  for  an  undis- 
closed principal,  though  he  is  personally  liable  on  it,  his  prin- 
cipal is  also  liable  on  it,  and  can  sue  and  be  sued i.  524 

contract  jnay  be  with  agent  alone  where  the  other  party  knows 

that  the  agent  has  a  principal i.  524 

rules  as  to  set-off  where  contracts  made  with  agents  for  undis- 
closed principals i.  524,  525 

by  custom,  parties  contracting  as  agents,  and  not  giving  name  of 

principal,  may  be  liable  personally i.  526 

evidence  of  usage  to  control  such  contracts  is  allowed  on  same 

principle  as  evidence  to  explain  technical  language     .     .     .    i.  527,  528 

but  an  express  contract  will  control  usage i.  527,  528 

as  will  rules  of  law i.  528 

agents  selling  goods  in  their  own  names  in  which  they  have  an 

interest  can  sue  for  the  price i.  527,  528 

principal  allowed  to  bring  action  on  policy  of  insurance  made  for 

him  through  his  agent i.  528 

where  charter-party  was  signed  by  the  charterers  as  "  agents  to 
merchants,"  they  were  held  liable  under  a  trade  usage,  not 
having  duly  disclosed  names  of  their  principals i.  529 

principles  as  to  this,  stated i.  529 

whether  agent  contracts  to  bind  himself  is  a  question  of  the  con- 
struction of  his  contract i.  531 

Hough  V.  Manzanos  is  a  very  doubtful  case,  decided  on  a  misun- 
derstanding of  Paice  v.  Walker i.  530,  531 

distinction    between    Christoffersen   v.    Hansen   and   Hough   v. 

Manzanos 1.  531 

misleading  effect  of  language  in  Smith's  Leading  Cases  ....       i.  532 


776  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

PRINCIPAL    AND    AGE'ST— (Cotitinued). 

itself  a  misapplication  of  language  used  by  Lord  EUenborough  in 

Leadbitter  i;  Farrow i.  532 

though  contractor  signs  as  agent,  if  contract  show  a  contrary  in- 
tention, agent  not  liable;  the  converse  of  this  being  equally 
true i.  532,  533 

simply  a  question  of  intention i.  533 

if  Gadd  v.  Houghton  is  correctly  decided,  then  Hough  i;.  Manza- 

nos  is  not i.  531 

legal  effect  of  the  language  is  the  same  whether  appearing  in  the 
body  of  a  contract  or  with  the  signature i.  534 

Cooke  V.  Wilson,  ignoring  this,  is  not  well  decided i.  535 

other  better  decided  English  and  American  cases,  contra     ...       i.  535 

even  where  the  signature  expresses  to  be  as  agent,  tlie  signer  may 
be  liable  as  principal,  and  when  not  signed  as  agent,  he  may 
not  be  liable  as  principal  on  a  proper  coustructiou  of  the  whole 
contract i.  535 

where  an  agent  contracts  as  principal  he  makes  himself  person- 
ally liable,  though  the  principal  may  also  be  made  liable      .     .       i.  534 

the  responsibility  of  the  agent  depends  upon  a  proper  construc- 
tion of  the  whole  contract i.  536 

wrong  decision  by  Common  Pleas  Division  on  effect  of  signature 

not  naming  agency,  though  shown  in  body  of  contract     ...       i.  536 

reversed  on  apj^eal  and  correct  doctrine  established    .     .     .     .    i.  537,  538 

Lord  Coleridge's  fallacy  in  the  case  exposed i.  536,  537 

where,  and  where  not,  set-off  good  defence  on  action  of  principal 

for  payments  made  agent i.  538,  539 

not  where  action  is  for  unliquidated  damages i.  538 

but  where  for  price  of  g(X)ds  by  undisclosed  principal     ....        i.  538 

a  usage  for  an  agent  to  make  himself  personally  liable  is  good    .        i.  538 

where  principal's  name  is  disclosed,  agent  or  principal  may  or 

may  not  be  liable  according  to  the  intention  of  the  parties  .     .       i.  539 

where  party  signs  as  agent  and  has  no  principal,  the  signer  is 
bound,  and  adoption  of  contract  by  a  stranger  will  not  relieve 
him i.  539,  540 

therefore  a  corporation  not  in  existetice  at  time  contract  made 
cannot  ratify  a  contract  by  one  professing  to  act  as  an 
agent i.  540,  541 

principal  can  only  make  himself  liable  by  subsequent  ratification, 
to  discharge  the  agent,  when  in  existence  at  the  time  of  the 
contract i.  541 

notwithstanding  "  brokers  "  is  added  to  a  signature,  the  signers, 
by  the  language  in  the  body  of  the  contract,  may  make  them- 
selves liable  as  principals,  though  being  in  fact  agents  ...       i.  542 

they  may  be  estopped  by  their  language  from  denying  that  they 

were  principals i.  542 

agent  cannot  retain  money  received  for  his  principal  for  a  bet  on 

ground  of  illegality  of  contract .     .   i.  543,  544 

difference  between  enforcing  illegal  contracts  and  asserting  title 

to  money  arising  from  them i.  544 

■where  clause  in  contract  inconsistent  with  holding  broker  liable 
as  principal,  proof  of  usage  that  he  was  to  be  so  if  not  disclos- 
ing principal,  held  inadmissible i.  543,  544 


ANALYTICAL    LNDEX.  777 

[References  are  to  both  text  iind  notes.] 

PRINCIPAL    AND   AGE}^T  —  (Contlnueil). 

and  this  too,  iiotwithstandiug  the  contract  was  for  foreign  prin- 
cipals     i.  oU,  545 

clause  that  the  brokers  are  to  be  arbitrators  is  equivalent  to  an 
express  declaration  that  they  are  not  to  be  principals      ...       i.  544 

where  jobber  in  selling  stock  committed  a  breach  of  the  statute 
by  which  his  principal  was  damnified,  he  was  held  liable  there- 
for notwithstanding  a  custom  to  the  contrary i.  544 

Rights,  Powers,  and  Liabilities,  as  between  Principals  and  Agents  .     1.  544-598 

measure  of  damages  as  between  principal  and  agent  differs  from 

that  as  between  vendor  and  vendee i.  545 

agent  paying  his  own  money  for  goods  may  have  right  of  stop- 
page in  transitu,  as  quasi  vendor i.  545 

no  passage  of  property  to  agent  by  buying  goods  for  his  prin- 
cipal   i.  545-547 

nor  are  they  in  his  order  and  disposition  as  reputed  owner  by 

being  in  his  possession i.  545-547 

purchased  with   principal's   money  are   impressed  with  a  trust 

even  in  the  hands  of  assignee  in  bankruptcy  of  agent     ...       i.  547 

where  agent  or  trustee  mixes  trust  property  with  his  own,  trust 

may  attach  to  the  whole,  subject  to  equities i.  547 

when  agent  buys  in  his  own  name  for  undisclosed  principal,  seller 
on  discovery  of  latter  can  elect  to  charge  either  principal  or 
agent i.  547 

subject,  if  electing  principal,  that  accounts  between  him  and  agent 

are  not  prejudiced i.  548 

election  implies  that  he  can  hold  but  the  one  whom  he  elects  to 

hold i.  548,  549 

in  doubtful  cases  the  question  of  election  is  for  the  jury     ...       i.  548 

how  far  agent  liable  for  conversion  for  goods  bought  by  him 

from  one  against  whom  trover  would  lie  . i.  549-557 

where  property  in  goods  passes  to  fraudulent  vendee,  innocent 

third  party  purchasing  is  protected i.  549,  550 

but  not  where  property  did  not  pass  to  fraudulent  vendee  .     .    i.  549,  550 

Lord  Chelmsford's  statement  of  the  law  inaccurate i.  549 

better  stated  by  Lord  Blackburn i.  550 

agent  acting  as  a  mere  conduit  for  the  passage  of  property  not 

guilty  of  conversion i.  550-557 

Lord  Chelmsford's  statement  to  the  contrary  incorrect  .     .     .    i.  549-552 

HoUins  V.  Fowler,  in  House  of  Lords,  criticised,  and  its  sound- 
ness, in  what  it  really  holds,  shown  to  be  inconsistent  with  the 
reasoning  on  which  it  is  based i.  550-557 

correct  holding  is  that  where  parties  buy  goods  only  as  agents  in 
the  course  of  their  business  as  brokers,  and  deal  with  goods 
only  as  agents  for  their  principals,  they  are  not  liable  for  con- 
version   i.  555-557 

as  far  as  HoUins  v.  Fowler  holds  contra  to  this,  the  case  is  not 

sustained  by  the  reasoning  in  it i.  555-557 

effect  of  the  finding  of  the  jury  in  the  matter,  considered   .     .    i.  550-557 

where  a  custom  is  repugnant  to  a  contract  so  as  to  flatly  con- 
tradict the  agreement,  to  the  extent  of  converting  an  agent  into 
a  principal,  the  usage  is  bad,  unless  where,  with  knowledge, 
it  is  made  a  part  of  the  contract i.  557-5G0 


778  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

PRINCIPAL   AND   AGE^T —  (Continued). 

principles  governing  usage  as  affecting  contracts i.  559,  560 

where  credit  given  to  an  agent,  undisclosed  principal,  dealing 
with  agent  as  principal,  only  liable  as  principal,  subject  to  pay- 
ments or  state  of  accounts  between  the  principal  and  the  agent   i.  560-568 

question  as  to  payment  to,  and  right  of  set-off  of  claims  against 

agent,  fully  discussed    , i.  560-568 

principles  apply  equally  to  a  foreign,  as  to  a  home  "principal  .     .       i.  563 

where  contract  made  by  brokers  is  made  expressly  for,  and  on 
account  of  their  principals,  a  usage  making  them  liable  if  they 
do  not  disclose  their  principals  may  be  good i.  563-569 

contract  with  one  declaring  himself  an  agent  does  not  estop  the 
other  from  showing  by  custom  or  by  fact  that  the  alleged  agent 
was  the  principal i.  l69 

the  estoppel  estops  the  one  making  it,  not  the  one  to  whom  it  is 

made i.  570 

a  broker  cannot  generally  sue  on  contracts  made  in  his  own  name 

as  broker i   570,  571 

auctioneers  having  a  lien  on  goods  can i.  571 

distinction  between  brokers  and  factors  as  to  right  of  set-off        .       i.  571 

distinction  between  right  against  principal  where  agent  does  not 
disclose  existence  of  principal,  and  where  he  does,  but  does  not 
disclose  principal's  name 1.  571 

principal  held  liable  to  pay  for  goods,  bought  by  agent  as  such, 

though  he  has  paid  the  agent i.  571,  572 

public  officers,  as  agents  of  a  government,  not  liable  as  principals 

on  contracts  for  government i.  572 

as  generally  an  agent  is  not,  who  contracts  in  the  name  of  his 

principal i.  572 

powers  given  to  an  agent  when  ambiguous  will  be  construed 

against  the  principal,  contra  proferentem i.  572 

where  agent  has  power  to  appoint  sub-agent,  the  latter  is  respon- 
sible to  the  principal i.  573 

where  parties  contract  with  agents  as  such,  they  are  liable  to  the 
agent's  principals  on  tlie  contract,  and  have  no  right  of  set-off 
for  their  claims  against  the  agents i.  573 

the  principals  being  foreign  makes  no  difference i.  573 

on  negotiable  paper  those  only  liable  whose  names  appear  on  it  .       1.  573 

where  one  really  an  agent  contracts  as  principal,  he  makes  him- 
self liable  on  his  contract i.  574,  575 

contract  with  reference  to  loading  of  ship  may  be  with  master 

as  an  undisclosed  principal i.  575 

under  the  English  Act  bankers  protected  by  indorsement  by  agent 

empowered  to  receive  but  not  to  indorse  check i.  575 

where  party  is  dealing  with  an  agent  as  principal,  means  of  knowl- 
edge as  to  agency  is  not  equivalent  to  knowledge,  to  exclude 
right  of  set-off i.  576 

such  defence  is  within  rule  in  George  v.  Clagett    ......       1.  576 

in  other  cases  means  of  knowledge  not  equivalent  to  knowledge  i.  576,  577 

factor  selling  goods  as  his  own  under  del  credere  commission,  inno- 
cent buyer  may  have  set-off i.  576 

purchaser  from  agent  as  such  cannot  for  such  purchase  write  off 

claim  against  agent  in  payment i.  577 


ANALYTICAL   INDEX.  779 

[References  are  to  both  text  and  notes.] 

PRINCIPAL   AND   AGE^ST  —  (Continued) . 

where  an  agent  has  power  to  receive  payment  in  money,  payment 
is  a  discharge,  but  the  payment  of  the  agent's  debt  to  the 
debtor  is  not i.  577 

custom  otherwise  must  be  proved i.  578 

English  decision  contra  doubted i.  578,  579 

but  there  may  be  such  a  usage,  as  in  underwriting  transactions  .       i.  578 

where  there  is  a  right  to  look  to  the  principal  mere  delay  in  doing 

so  will  not  relieve  him i.  579 

unless  act  of  party  toward  agent  has  misled  principal  to  prejudice 

of  latter i.  579 

the  question  discussed i.  579-581 

where  agent  no  power  to  pledge  principal's  credit,  principal  not 

bound i.  581 

principal  liable  for  acts  or  negligence  of  agent  in  scope  of  em- 
ployment during  continuance  of  employment i.  581 

principal's  authority  to  agent  must  be  followed i.  580-582 

where  agent  purchasing  goods  with  his  own  money  has  a  right 
to   resell  them   to   recoup   himself,    principal    is    liable    for 
deficiency i.  582 

where  agent  sells  prematurely  principal  has  claim  against  him 

for  damages i.  582 

parties  nominally  dealing  as  principal  and  agent  may  really  be 

vendors  and  vendees i.  582,  583 

intention  of  the  parties,  as  shown  by  the  facts,  is  to  govern    .    i.  582,  584 

agent  buying  for  principal,  although   improperly  reselling  the 

goods,  may  recover  against  his  principal  for  breach  of  contract       i.  584 

usually  a  power  to  an  agent  to  sell  implies  a  power  to  warrant     .       i.  584 

where   authority   by   agent   for   purchasing   to   give   collaterals 

implied i.  585 

although  a  private  agent  violating  private  instructions  may  bind 
his  principal,  it  is  otherwise  with  public  agents i.  584,  585 

attorney-at-law  virtute  officii  not  agent  of  his  client  to  purchase 

property i.  585 

agent  selling  is  entitled  to  his  commission  where  sale  not  carried 

out  by  fault  of  principal i.  585-586 

agent's  authority  to  receive  payment  of  debt  is  usually  that  he 

must  receive  it  in  money i.  586 

payment  to  him,  by  giving  him  credit  in  account,  no  discharge 

of  debt  as  to  the  principal i.  586 

where  goods  are  intrusted  with  an  agent  for  sale,  he  has  usually 

an  implied  lien  on  them  for  his  acceptances  against  them    .     .       i.  587 

agent's  acts  done  within  the  scope  of  his  employment  may  be 
given  in  evidence  against  the  principal  in  criminal  as  well  as 
in  civil  proceedings       i.  587 

distinction  between  general  and  special  agents i.  587,  589 

error  that  to  make  one  a  general  agent  he  must  hold  himself  out 

as  such .     .   i.  589,  590 

presumption  that  agents  of  insurance  company  giving  credit  is 
known  to  the  company,  under  notice  that  the  agents  stood 
chargeable  therewith i-  589,  590 

where  act  of  agent  is  not  within  scope  of  his  employment,  prin- 
cipal not  affected  thereby i-  590,  591 


780  ANALYTICAL   INDEX, 

[References  are  to  both  text  and  notes.] 

PRINCIPAL   AND   AGE^sT —  (Contmued). 

principal  bound  where  authority  of  agent  is  substantially  pur- 
sued, differing  from  case  between  vendor  and  vendee  ....       i.  591 

agent  in  performing  act  may  do  so  according  to  the  usage  of  the 

place,  though  principal  has  no  knowledge  of  the  usage    .     .    i.  591,  592 

where  act  within  scope  of  employment,  principal  bound  by  acts 

of  agent  though  private  instructions  are  departed  from    ...       i.  592 

powers  incidental  to  agency  not  devested  by  private  instructions        i.  592 

agency  takes  with  it  its  implied  powers  notwithstanding  secret 

instructions i.  592 

but  auctioneer  who  has  only  power  to  sell  for  cash  cannot  dis- 
charge purchaser  by  taking  bill  of  exchange i.  593 

power  to  take  payment  in  bill  may  be  implied  from  common 

practice i.  593 

where  one  acts  as  an  agent,  disclosing  principal,  the  agent  is  only 

liable  by  his  agreement  to  be  so i.  593 

as  long  as  by  the  contract  it  appears  that  it  is  made  for  his  prin- 
cipal, the  agent  is  not  bound i.  593 

where  principal  acquiesces  in  the  act  of  his  agent,  he  is  bound 

by  it i.  593 

■where  principal's  limit  in  underwriting  is  exceeded,  principal  is 

not  bound,  such  limits  being  notorious i.  594 

an  agent  for  underwriting  is  not  a  general  agent  in  its  wide 

sense,  but  he  is  confined  to  the  express  limit  of.  his  power    .     .       i.  594 

an    attorney   of  an    agent   may   not   be   the   sub-agent  of   the 

principal i.  594 

but  where  an  agent  has  power  to  appoint  a  sub-agent,  the  latter 

becomes  the  agent  of  tiie  principal i.  595 

express  power  to  agent  to  sell  for  a  specific  price  is  binding  on 
principal,  though  the  agent  sold  other  similar  property  at 
higher  price i.  595 

but  where  an  agent  takes  a  benefit  for  himself,  by  failure  to  dis- 
close he  takes  as  trustee  for  his  principal i.  595 

where  agent  sells  as  principal,  right  of  set-ofiE  between  him  and 

purchaser  attaches i   595-597 

principal,  without  knowledge  of  custom,  not  bound  by  it  where 

his  contract  with  his  agent  is  entirely  changed  thereby     ...       i.  597 

parties  offering  to  sell  on  terms  named  to  their  agent,  not  bound 

to  sell  where  terms  are  departed  from i.  597 

taxes  on  sales  are  not  collectible  from  agents  who  purchase,  their 

principals  paying  the  selling  parties i.  .597,  598 

Officers  of  Companies  as  Agents i.  598-605 

both  the  principal  and  agent  are  responsible  for  false  representa- 
tions made  by  the  agent  within  scope  of  liis  employment    .     i.  598,  599 

agent's  signature  to   representation  not  binding,  within    Lord 

Tenterden's  Act,  on  principal i.  59!t 

where  fraud  is  that  of  the  agent  alone,  and  not  within  implied 

authority  of  company,  latter  not  liable i.  59.0 

contracts  signed  by  officers  of  a  company  as  such  bind  the  com- 
pany, and  not  the  officers i.  509 

presumption  as   to   checks   and   drafts   signed  by  oflScers  of   a 

company i   600 

officers  of  a  company  de  facto  bind  the  company i.  GOO 


ANALYTICAL   INDEX,  781 

[References  are  to  both  text  and  notes.] 
PRINCIPAL    AND    AGEST  —  (Continued). 

banks  are  affected  by  notice  to  their  cashiers i.  600 

corporations  are  liable  the  same  as  individuals  for  the  acts  of 

their  servants i.  600 

power  of  officers  to  bind  companies i.  600,  GOl 

contract  entered  into  by  a  superintendent  of  a  company  describ- 
ing the  company  as  parties,  is  the  contract  of  the  company, 
and  not  of  the  superintendent i.  601 

but  one   may    make   himself   liable   as  principal,   where   term 

^^  agent"  is  merely  descriptio personce 1.  601 

cashier  of  bank  has  no  implied  power  to  bind  latter  by  his  ac- 
commodation indorsement i.  601 

but  it  may  be  shown  that  a  note  signed  by  a  cashier  of  a  bank 

was  for  a  loan  to  the  bank i.  602 

bank  doing  business  as  brokers  held  liable  to  broker's  tax      .     .       i.  602 

authority  informally  given  to  agent  by  directors  of  company  held 

binding  on  the  company i.  602,  603 

where  transactions  are  with  cashier  personally,  and  not  with  the 

bank,  the  bank  is  not  liable  for  his  fraud i.  603 

innocent  purchasei'S  of  bank  certificates  fraudulently  signed  by 
cashier  may  hold  the  bank,  though  those  cannot  who  are  cog- 
nizant of  the  fraud        i.  603 

statements  of  cashier  as  to  bank's  securities  within  line  of  his 

duty  bind  the  bank i.  603,  604 

powei's  of  cashier  may  be. enlarged  by  implied  authority  given 

him  by  the  directors         i.  604,  605 

Fraud  and  Concealment  by  Agent i.  605-622 

false  statements  of  agent  will  vitiate  contract  when  made  within 

scope  of  his  employment i.  605,  606 

agent  fraudulently  selling  his  own  shares  is  liable  to  his  prin- 
cipal for  the  damage i.  606 

and  doctrine  as  to  restitutio  in  integrum  does  not  apply  between 

principal  and  agent,  as  between  vendor  and  vendee     ....       i.  606 

agent  will  have  to  account  for  profits  fraudulently  made  in  sell- 
ing his  principal's  property i.    606,  607 

a  client  may  be  aifected  by  fraud  of  his  counsel,  having  knowledge 

of  it  and  participating  in  the  fruits  of  the  fraud      .....       i.  607 

purchase  by  agent  from  principal  of  property  under  pretence  that 
it  was  for  another,  set  aside,  although  it  would  have  been  sus- 
tained but  for  the  deceit i.  607 

such  transaction  may  be  set  aside  although  perfectly  fair  in  every 

other  respect i.  608 

agent  compelled  to  account  to  principal  for  secret  advantage  to 

himself  in  purchase  for  principal     .  i-  608 

profits  and  interest  on  principal's  money  made  by  agent,  belong 

to  principal i.  60S 

■where  principal  held  liable  for  fraudulent  misrepresentation  of 

agent i.  608-610 

the  fraud  may  be  described  as  that  of  the  principal,  though  he 

had  no  knowledge  of  it i-  610 

the  party  making  the  repre.sentation,  however,  must  make  it  in 

the  capacity  of  agent  for  his  principal      .......     i.  611-613 

principals  not  affected  by  knowledge  of  one  concealing  facts,  but 

not  acting  for  the  principal i.  612,  613 


782  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

PRINCIPAL    AND    AGE'ST  —  (Co?itinued). 

principals  only  bound  by  acts  of  agent  according  to  the  nature 

of  the  agency i.  613,  614 

the  authority  to  bind  the  principal  depends  upon  whether  the  act 
of  the  agent  is  within  the  scope  of  his  authority     .     .     .     .   i.  614,  615 
(See  Railway  Fheight  Receipts.) 

where  agent  fraudulently  fills  up  blanks  in  acceptances  of  biUs 

left  with  him  to  discount,  principal  is  bound i.  614-616 

such  acts  fall  within  the  rule  governing  loss  by  one  of  two  inno- 
cent parties i.  616 

trustee  or  executor  not  personally  responsible  for  loss  caused  es- 
tate by  fraudulent  acts  of  necessary  agents i.  616,  617 

principal  receiving  money  from  his  agent  obtained  fraudulently 
within  scope  of  his  employment,  held  liable  to  parties  from 
whom  it  was  obtained i.  617 

where  agent  fraudulently  sells  his  own  goods  to  his  principal,  the 
measure  of  damages  is  the  excess  over  the  market  piice  obtain- 
able for  the  goods  at  the  time  of  the  sale i.  617,  618 

where  principal  can  make  restitutio  in  integrum,  he  can  annul  the 

contract  and  recover  his  damages i.  618 

principal  may  avoid  contract  prejudicial  to  his  interest,  made  by 

his  agent  under  gratuity  from  the  other  contractor     ,      .     .    i.  618,  619 

where  the  consideration  is  corrupt  the  agent's  contract  will  not 

be  enforced,  though  the  principal  has  not  been  damnified     .   i.  619,  620 

surreptitious  dealing  between  one  principal  and  the  agent  of  the 
other  is  a  fraud  on  the  other  for  which  he  is  entitled  to  full 
redress i.  620,  621 

where  the  fact  that  an  architect  is  the  agent  of  an  employer  is 
concealed  from  the  builder,  an  agreement  that  the  architect 
shall  act  as  arbitrator  cannot  be  enforced i.  621,  622 

but  as  an  agreement  that  differences  shall  be  left  to  a  contracting 
company  to  decide,  may  be  made,  so  an  agreement  that  their 
engineer  shall  decide  on  differences,  is  likewise  good       ...       i.  622 

an  agent  taking  an  interest  in  purchase  made  from  his  principal, 

must  make  full  disclosure  of  such  interest i.  622 

Ratijicat  ion  of  Acts  of  Agents i.  622-630 

ratification  acts  as  though  previous  authority  existed,  except  as 

to  rights  of  third  parties .     .     .    i.  622-624 

applies  only  to  one  claiming  to  act  as  agent  of  the  party  ratifying      i.  623 

ratification  is  too  late  where  by  act  of  third  parties  agent's  act 

is  invalid * i.  623,  624 

party  at  the  time  of  the  ratification  must  be  able  to  do  what  the 

agent  has  previously  done i.  624,  625 

liens  by  attachment  or  judgment  are  not  affected  by  subsequent 
ratification  of  previous  unauthorized  transfer  of  property  by 
agent i.  625 

act  of  ratification  can  only  be  made  by  one  having  power  to  per- 
form the  act i.  625 

a  government  may  ratify  an  act  done  in  its  name,  rendering  it 

an  act  of  state i-  626 

principal  must  repudiate  the  excessive  act  of  his  agent  within  a 

reasonable  time i-  626 

or  otherwise  it  may  be  treated  as  acquiescence i.  626,  627 


ANALYTICAL   INDEX.  783 

[Refereuces  are  to  both  text  and  uotes.] 

PRINCIPAL   AND   AGE^T  ~  (Continued). 

by  ratifying  tlie  contract  of  the  agent  the  principal  becomes  a 

party  to  the  contract,  and  the  original  consideration  attaches         i.  627 

refusal  to  ratify  the  agent's  act  leaves  the  matter  one  between  the 

other  party  and  the  agent i.  627 

ratification  must  be  with  full  knowledge  of  facts,  otherwise  it 

will  be  invalid i.  627,  628 

a  contract  made  for  one  against  his  express  directions  does  not 

bind  him  without  ratification i.  628 

ratification  may  be  implied  from  misleading  acts  of  principal    i.  628,  629 

as  receiving  fruits  of  agent's  acts  in  silence i.  629 

after  agent  is  held  out  as  such,  authority  is  continued  until  deal- 
ers with  him  are  notified  of  cessation i.  629 

special  instructions  to  general  agents  do  not  affect  others  unless 

communicated  to  them i.  629 

treating  a  sale  as  made  may  be  a  ratification  of  it,  entitling  the 

seller  to  his  commission i.  629,  630 

a  private  letter  to  an  agent  may  be  a  sufiicient  ratification      .     .       i.  630 

and  may  bind  principal,  though  open  to  either  of  two  meanings       i.  630 
Consignees;  Factors'  Acts,  etc i.  630-658 

foreign  principals,  the  same  as  home  principals,  may  follow  their 
goods  in  the  hands  of  third  parties  through  illegal  acts  of 
agents 1.  645 

principals  only  bound  by  acts  of  agents  within  scope  of  authority 

illustrated  by  decisions  under  the  Factors'  Acts     .     .     .     .    i.  645,  649 

■where  under  the  rules  of  the  Chicago  Board  of  Trade  the  agent 
discharges  one  purchaser  or  seller  without  providing  for  an- 
other, he  himself  becomes  liable  to  his  principal    .     .     .     .    i.  648,  649 

agent's  contract  for  principal  binds  the  latter,  though  made  in 

name  of  agent i.  649 

parties  making  sales  of  goods  of  others,  ha,ving  them  in  posses- 
sion, are  commission-merchants  as  distinguished  from  brokers, 
and  do  not  come  within  latter  designation i.  649 

under  the  U.  S.  Act,  12  St.  at  Large,  820,  factor  has  only  claim 
for  his  advances  against  the  goods;  beyond  that  the  property 
is  in  the  owner,  subject  to  U.  S.  claims i.  649 

factor  has  no  power  to  pass  property  in  his  principal's  goods  for 

his  own  precedent  debt i.  650 

where  the  factor  absconds,  his  clerk  has  no  power  to  pass  prop- 
erty in  goods  of  factor's  principal i.  650 

balance  due  by  a  factor  to  his  principal  is  not  a  fiduciary  debt 

within  U.  S.  Bankrupt  Act  of  1841 i.  650 

factor  must  apply  proceeds  of  goods,  consigned  for  such  purpose, 

to  meet  acceptances  against  them i.  650 

but  where  no  special  agreement,  he  can  apply  the  proceeds  of  the 
goods,  on  which  he  has  a  lien,  for  principal's  general  indebted- 
ness to  him i.  650 

principles  governing  sales  by  factors  of  the  goods  of  their  prin- 
cipals stated  by  U.  S.  Supreme  Court i.  650-655 

the  correctness  of  their  application  questioned i.  651-655 

where  sale  of  agent  is  tortious  and  in  violation  of  orders,  im- 
pliedly assented  to  by  him,  he  is  liable  for  damages  for  breach 
of  orders i.  654,  655 


784  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

PRINCIPAL   AXD   AGEWr  —  (Co)itinue</). 

where,  and  where  not,  agent  can  sell  his  principal's  goods  against 

the  latter's  orders i.  650-^55 

where  transfer  by  one  not  having  title  is  made  of  goods  to  one  a 
party  to  a  fraud,  the  latter  has  no  better  title  to  the  goods  than 
the  transferor i.  655,  656 

a  warehouseman's  receipt  for  goods  not  delivered  passes  no  prop- 
erty in  goods  in  the  warehouse  belonging  to  another       ...       i.  65G 

where  purchasers  buy  goods  and  receive  their  possession,  it  is  no 
defence  for  non-payment  that  there  is  au  outstanding  unen- 
forced lien  upon  them i.  65G 

a  voluntary  payment  to  a  third  party  is  no  answer  as  between 
vendor  and  vendee  for  non-payment  for  the  goods  to  the 
vendor i.  656 

commission  merchants  and  warehousemen  may  insure  goods  in 
their  possession  in  their  own  names  for  benefit  of  themselves 
and  owners i.  656,  657 

principles  laid  down  by  the  Supreme  Court  of  the  United  States 
as  to  liability  of  carriers  for  through  carriage  of  goods,  fully 

discussed  in  Book  III.,  Part  I i.  657,  658 

(See  Railway  Freight  Receipts.) 

one  of  the  principals  cannot  be  the  other's  agent  to  sign  the  note 

in  writing  to  satisfy  the  Statute  of  Frauds  ...  .     .     .      ii.  672 

letter  written  by  a  solicitor  in  that  capacity  is  not  by  an  agent 

to  satisfy  the  Statute  of  Frauds ii.  672 

PRIVILEGE  OF  RETURN.     (See  Price;  Sale.) 

PRIVITY  OF  CONTRACT.     (See  Contract.) 

PROHIBITION.     (See  United  States  Incorporated  Companies.) 

PROPERTY  PASSING.     (See  Passing  of  Property  in  Goods.) 

PROSPECTUS.     (See  English  Companies  Acts.) 

principle  governing  directors  in  issuing i.  314-316 

they  must  equally  avoid  the  suppressio  veri  as  the  suggestio  falsi  .        i.  316 
RAILWAY  CONTRACTS.      (See  Railway  Freight  Receipts  ) 

for  through  carriage  of  goods ii.  75-215 

decisions  in  England  are  uniform  and  consistent ii.  75 

where  an  express  contract,  what  the  carrier  is  to  do  simply  a  ques- 
tion of  what  is  the  contract        ii.  75,  76 

what  is  to  be  deduced  or  implied  depends  on  the  circumstances  .        ii.  76 

the  English  cases  stated  and  examined ii.  76-94 

propositions  of  law  .deduced  from  them ii.  89-91 

in  Upston  v.  Clark,  the  implied  contract  was  that  the  first  re- 
ceiver of  the  goods  did  not  contract  as  a  through  carrier     .     .         ii.  76 

so  in  Gilbert  v.  Dale  a  contract  to  take  goods  to  Y.,  and  there 

forward  them,  is  not  a  contract  for  through  carriage  ...       ii.  76,  77 

in  Syms  v.  Chaplin,  and  Garside  v.  The  Trent,  etc.  Co.,  a  conti-act 
to  carry  them  to  a  point  and  then  forward  them  made  the 
carriers  only  liable  as  such  to  the  first-named  point     ....       ii.  77 

but  in  Hyde  v.  The  Trent,  etc.  Co.,  a  charge  for  cartage  at  the  ul- 
timate point  showed  that  a  contract  for  through  carriage  was 
implied ii.  77 

but  general  custom  or  particular  usage  between  the  parties  may 

govern  the  construction  of  the  contract ii.  77 


ANALYTICAL    INDEX.  785 

[Referencea  are  to  both  text  and  notes.] 

RAILWAY   CONTRACTS  —  {Continued). 

and  where  the  receiving  cai-riers  made  one  through  charge,  they 
were  not  liable  as  through  carrier.s,  having  expressly  contracted 
otherwise ii.  78 

in  the  leading  English  case  of  IVIuschamp  v.  Railway,  held  that 
carriers  receiving  goods  marked  for  carriage  to  a  particular 
point  implies,  jn-lmd  facie,  that  they  are  to  carry  them  there; 
the  receipt  of  the  carriage  money  in  one  undivided  sum  sup- 
porting such  inference ii.  78,  7i) 

this  is  simply  an  inference;  not  conclusive,  but  o\\\y  prima  facie, 

and  may  be  rebutted ii.  79 

a  succession  of  other  English  cases  affirm  the  same  doctrine     .     .  ii.  79,  80 

what  the  contract  is,  a  mere  question  of  fact ii.  80 

the  principle  in  Bristol,  etc.  Co.  v.  Collins  is  the  same,  but  the 
construction  of  the  contract  there  by  the  House  of  Lords,  re- 
versing the  decision  of  the  Exchequer  Chamber,  gravely 
questioned ii.  81,  82 

accurate  statement  of  the  law  made  in  that  case  by  Crompton,  J., 
showing  that  what  the  carrier  is  to  do  depends  on  what  he  ex- 
pressly or  impliedly  contracts  to  do       ii.  82,  8.3 

the  case  discussed,  and  the  construction  b^y  the  House  of  Lords 

shown  to  be  untenable ii.  83-85 

in  Webber  r.  Railway,  held  that  the  implied  contract  was  for 
through  carriage,  the  jury's  finding  to  that  effect  being 
su.stained ii.  8:?-87 

the  Irish  decisions  on  the  subject  agree  with  the  English  cases    .       ii.  ^1 

selling  a  through  ticket  by  one  company  is  one  entire  contract  for 

the  whole  distance ii.  87 

on  principles  of  agency  or  partnership,  connecting  carriers  also 

held  liable ii.  87 

where  the  contract  is  exclusively  with  the  receiving  company  for 
the  whole  route,  connecting  company  not  liable  under  the 
contract ii  87,  88 

but  the  connecting  company  may  be  liable  for  a  breach  of  duty; 

rules  stated .     .  ii.  88-91 

connecting  company  held  liable  for  negligence ii.  91 

though  the  contracting  company  also  liable  under  its  contract  for 

injury  caused  by  connecting  road ii.  91,92 

the  implied  contract  for  due  care  extends  over  the  entire  field 

embraced  by  the  contract  ii.  92  9.') 

so  a  contract  as  to  exemption  from  liability,  though  made  by  the 

receiving  carrier,  may  apply  to  the  whole  route ii-  9;") 

the  Engli-sh  cases  are  thus  shown  to  be  in  harmony,  and  not,  as 

is  supposed  in  this  country,  in  antagonism •     .        ii.  9(i 

Redfield's  statement  to  this  "latter  effect,  that  there  is  an  English 
rule,  in  effect  that  the  contract  is  always  one  with  the  receiving 
carrier  for  through  carriage,  incorrect ii.  9() 

apparently  misled  by  the  doubtful  construction  by  the  House  of 

Lords  of  the  contract  in  Bristol,  etc.  v.  Collins ii.  90,  97 

Redfield  is  also  wrong  whore  he  states  that  the  earlier  English 
rule  was  that  the  carrier  was  only  liable  over  the  extent  »f  his 
own  route '     '  ..    " 

no  such  Engli.sh  rule  in  the  early  or  late  cases ii-  ••".  -'8 

VOL.  II.  50 


786  ANALYTICAL.    INDEX. 

[References  are  to  both  text  and  notes.] 

RAILWAY   CONTRACTS—  (Con/muerf). 

the  law  governing,  both  in  America  and  England,  more  accu- 
rately stated  by  Hutchinson ii.  98,  99 

the  principle  which  governs  the  cases  vindicated ii.  99,  100 

Hutchinson  inaccurate  when  stating  that  the  connecting  company 

is  not  liable  for  its  negligence  or  fault       .     -. ii.  100 

Redfield's  statement  of  what  he  calls  the  American  rule     .     .  ii.  100,  101 

inaccurate  in  saying  it  follows  the  earlier  English  cases,  they  not 

differing  from  the  late  cases ii.  101 

"  special  "  contract  an  unfortunate  term,  —  the  carrier  is  liable 
on  his  contract,  whatever  that  may  be,  express  or  implied  .     .      ii.  101 

rcswrne  of  the  holding  in  the  English  cases ii.  102-105 

Massachusetts  cases,  usually  cited  as  holding  what  is  called  the 

"  American  rule,"  examined ii.  105-115 

some  confusion  in  these  cases  from  their  improper  use  of  the 

terms  "  special  contract  "  and  ^^ positive  contract'"  .     .     .     .  ii.  108-111 

misunderstanding  in  the  Massachusetts  cases  of  the  holding  in 

the  English  cases        ii.  111-115 

and  although  they  repeat  the  language  of  Redfield,  the  cases  are 

in  harmony  with  the  English  cases   .' ii.  105-115 

the  New  York  cases  examined ii.  115-135 

in  Ackley  i'.  Kellogg  the  contract  was  an  express  one  to  take  the 
goods  to  T.  and  forward  them,  and  the  holding  is  in  exact  ac- 
cord with  that  in  the  English  cases ii.  116 

Weed  V.  The  Saratoga  R.  R.  Co.,  decided  prior  to  Muschamp  v. 
Railway,  is  to  the  same  effect  exactly,  and  harmonizes  with 
other  English  cases,  that  the  connecting  company  may  be  also 
liable  in  tort ii.  116 

St.  John  V.  Van  Santvoord,  decided  concurrently  w-ith  Muschamp 
I'.  Railway,  which  has  been  considered  as  reversing  Weed  v. 
The  Saratoga  R.  R.  Co.,  expressly  distinguishes  this  latter 
case,  and  in  effect  affirms  it,  as  it  does  Muschamp  v.  Railway  ii.  116-120 

it  rather  comes  within  the  class  of  cases  such  as  Upston  i'.  Clark 

and  Gilbert  v.  Dale,  than  within  the  cases  it  distinguishes     ii.  119,  120 

the  controlling  facts  in  the  case  were  the  payment  to  the  receiv- 
ing carrier  to  the  termination  of  its  own  route  only,  and  the 
proof  of  usage,  overcoming  the  implication  from  the  marking 
of  the  goods  alone ii.  118-121 

in  Jacobs  v.  Hooker  there  was  an  express  contract  to  carry  the 

goods  to  T.,  and  forward  them ii.  121 

Wilcox  V.  Parmelee  follows,  and  approves  of  Muschamp  v.  Rail- 
way, stress  being  laid  on  the  one  through  payment     ....      ii.  121 

"  to  forward  "  is  here  construed  "  to  carry  " ii.  121,  122 

this  case  distinguishes  St.  John  v.  Van  Santvoord ii.  122 

other  New  York  cases  cited  in  note  also  agree  with  the  doctrine 

of  the  English  cases ii.  122 

notwithstanding  the  mistake  as  to  the  holding  of  the  English 

cases  in  some  of  them ii.  127-130,  135,  136 

further  New  York  cases  hold  precisely  as  is  held  in  similar  cases 

in  England ii.  127-136 

Maine  cases  usually  cited  as  opposed  to  the  English  cases  ...      ii.  136 
Perkins  t».  Railroad  is  the  first  of  these,  and  the  carriers,  on  an 
express  contract,  were  held  liable  over  the  whole  route    ...     ii.  136 


\ 


ANALYTICAL    INDEX.  787 

[References  are  to  both  text  and  notes.] 

BAIL  WAY   CONTRACTS  —  (Continued). 

the  case  quotes  Redfield's  fallacy,  and  contains  some  unsound 

reasoning^,  but  is  correctly  decided ii.  136,  137 

Skinner  v.  Hall  was  a  case  of  an  express  contract  with  a  specific 

limitation  of  the  carrier's  contract ii.  137,  138 

in  Inhabitants,  etc.  v.  Hall  the  court  confound  "  special "  contract 
with  an  express  contract,  and  incorrectly  say  that  a  carrier's 
liability  can  only  be  extended  beyond  his  own  route  by  express 
contract ii.  138 

but  the  case  itself  was  one  of  a  written  contract,  with  an  express 
provision  excluding  the  carriers'  liability  beyond  their  own 
route ii.  138 

in  the  subsequent  case  of  Grindle  v.  Express  Co.  the  same  court 
unanimously  hold  that  the  liability  may  be  by  contract,  ex- 
press or  implied,  and  the  proof  may  be  by  words,  conduct,  or 
usage,  etc ii.  139,  140 

though  much  incorrect  and  contradictory  reasoning  in  the  Maine 

cases,  not  one  of  them  holds  contra  to  the  English  cases       .     .      ii.  139 

the  cases  in  Connecticut  stated,  and  shown  to  be  contradictory 

and  illogical ii.  139-149 

mainly  decided  on  ground  that  railway  companies  cannot  contract 

to  carry  beyond  their  own  route ii.  141 

differing  in  this  respect  from  all  other  decisions,  American  and 

English ii.  141 

the  dissenting  judgment  of  Waite,  C  J.,  assented  to  by  Hinman, 

J.,  subsequently  C.  J.,  able  and  conclusive ii.  143-146 

the  cases,  decided  by  a  mere  majority  of  the  court,  considered  of 

no  weight,  being  thoroughly  unsound ii.  149 

notwithstanding  the  Vermont  cases  are  tinctured  with  Redfield's 
unsound  views,  they  harmonize  with  the  English,  New  York, 
Massachusetts,  and  Maine  cases ii.  150,  157 

the  Vermont  cases  fully  stated ii   150-157 

and  Judge  Redfield's  inconsistent  positions  made  clear  .     .     .   ii.  150-153 

the  Vermont  court,  like  the  other  courts,  dissents  from  the  hold- 
ing in  the  Connecticut  cases  as  to  the  power  of  contracting  by 
incorporated  carriers ii.  153 

the  cases  discussed,  and  the  actual  harmony  between  the  Ver- 
mont and  English  cases  shown ii.  151-156 

other  cases  stated  and  reviewed,  and  the  principles  shown  by 

which  they  are  really  governed ii.  157-160 

unsound  decision  in  North  Carolina  stated ii.  161,  162 

further  State  cases  stated,  and  their  unsound  reasoning  pointed 

out ii.  163-165 

incorrect  statement  of  the  English  decisions  by  the  Supreme 

Court  of  the  United  States ii.  165-167 

their  misstatements  of  the  law  turned  against  thorn,  and  their  en- 
forced decisions  accord  with  the  sound  law  of  tiie  Eiiglisii  cases  ii.  167-169 

the  incorrect  statement  of  the  holding  in  the  English  cases  re- 
peated by  the  Supreme  Court  of  tlie  U.  S.,  but  tlieir  deci.sion 
is  again  in  harmony  with  the  holding  in  those  cases    .     .     .  ii.  170-172 

the  U.  S.  Circuit  Court  hold  contra  to  the  Supreme  Court  of  the 
U.  S.,  led  away  by  the  fallacies  relating  to  the  English  cases, 
and  badly  decide  a  case ii.  172-175 


788  ANALYTICAL   INDEX. 

fReferences  are  to  both  text  and  notes.] 

RAILWAY    CONTRACTS  —  (Continued). 

which,  on  the  holding  in  the  Supreme  Court  of  the  U.  S.,  would 

have  been  reversed  in  this  latter  court  .     .     .    < ii.  175 

geneial  uniformity  between  the  actual  holding  in  the  English 

and  American  cases ii.  175 

the  harmony  between  Muschamp  v.  Railway  and  the  holding  in 

this  country  shown ii.  175-177 

cases  in  Illinois  concurring  with  the  holding  in  the  cases  in  Eng- 
land and  America  which  harmonize ii.  177-179 

but  the  principle  governing  these  cases  not  correctly  stated      .  ii.  179-182 

also  misstated  in  a  Wisconsin  case        ii.  183 

what  the  law  really  is,  as  held  in  the  English  and  in  the  mass  of 

the  American  cases ii.  183 

this  piinciple  misapprehended  in  another  Illinois  case    .     .     .  ii.  183,  184 
the  law  very  clearly  and  correctly  stated  by  Scott,  C.  J.,  in  a 

later  Illinois  case ii.  185,  186 

unfortunate  use  of  "  express  "  contract  in  an  Illinois  case,  and 

consequent  incorrect  statement  as  to  the  holding  in  the  English 

cases ii.  186 

the  same  principles  apply  to  the  construction  of  these  as  to  other 

contracts       ii-  186,  187 

the  law  stated  in  the  Illinois  Appellate  Court,  more   carefully 

stated  than  is  usual  here ii.  187 

mistake  of  the  Supreme  Court  rectified  by  the  Appellate  Court  ii.  187-190 
case  in  Florida  decided,  on  principle,  the  same  as  the  English 

cases,  and  as  those  well  decided  in  this  country ii.  190 

and  a  case  in  Illinois  decided  prior  to  Muschamp  ik  Railway, 

harmonizes  with  it ii.  190,  191 

decision  in  Alabama  in  effect  also  the  same  as  in  that  case,  but 

showing  the  usual  misapprehension  of  the  law  as  decided  in 

the  English  cases,  and  in  the  well-decided  cases  here       .     .  ii.  192,  193 
correct  decisions  in  Tennessee  and  East  Tennessee,  but  generally 

inaccurate  statement  as  to  the  law  governing  such  cases       :  ii.  193-195 

a  Tennessee  case  named,  void  of  such  mistake       ii.  193 

the  error  usually  made  is  in  treating  that  which  is  but  prima 

facie  evidence  as  though  it  were  conclusive  evidence  .     .     .  ii.  191,  195 
the  law  very  badly  stated  by  the  Supreme  Court  of  the  United 

States ii.  195 

most  accurately  stated  in  this  country  by  Waite,  C.  J.,  in  Elmore 

V.  Railroad;  by  the  Illinois  Appellate  Court,  in  Chicago,  etc.  v. 

Church,  and  in  Tennessee,  in  Western,  &c.  v.  McElwee       .     .      ii.  195 

judgment  by  Freeman,  J.,  in  the  Tennessee  case ii.  195,  196 

further  decisions  on  the  subject  in  Tennessee ii.  196,  197 

a  correct  decision  in  the  Supreme  Court  of  Iowa,  but  containing 

Redfield's  misleading  statement  as  to  the  English  holding  in 

the  matter ii.  197,  198 

and  the  meaning  of  prima  facie  as  used  in  Muschamp  v.  Railroad, 

again  misunderstood ii-  198 

South  Carolina  cases  purport  to  be  decided  the  same  as  the  Eng- 
lish cases ii'  1^8 

even  less  difference  between  the  English  and  American  deci- 
sions than  stated  by  Simpson,  C.  J.,  in  the  South  Carolina 
Court ii-  19«,  199 


r 


ANALYTICAL   INDEX.  789 

[References  are  to  both  text  and  notes.] 

RAILWAY   CONTRACTS—  (Continued). 

in  New  Hampshire  case,  coirectiou  made  of  the  common  error 

in  this  country  of  misusing  the  term  '*  special  "  contract      .  ii.  199,  200 
the  question  fully  considered  in  a  valuable  judgment  by  Perley, 

C.  J ii.  199-206 

held  in  New  Hampshire,  as  in  the  Irish  cases,  that  connecting 

companies  may  be  jointly  liable  as  partners ii.  202-206 

inaccurate  view  in  New  Hampshire  case  of  the  English  holding 

as  to  the  liability  of  an  intermediate  carrier ii.  206 

holding  there,  as  in  the  Supreme  Court  of  the  United  States,  that 
an  action,  independent  of  contract,  will  lie  in  tort  for  negli- 
gence      ii.  206 

in  State  v.  Hodge,  the  New  Hampshire  court  impropex'ly  treated 

presumptions  as  being  always  presumptions  of  fact     .     .     .  ii.  206,  207 
following  this  error,  the  same  court,  in  Gray  (-•.  Jackson,  improp- 
erly treated  the  liability  of  a  carrier  as  being  a  matter  of  fact 

only,  and  not  at  all  of  law ii.  207 

the  unsoundness  of  this  view  shown ii.  207-209 

the  better  decisions  in  New  Hampshire  itself  show  that  Gray  v. 

Jackson  is  not  law ii   209-211 

a  Missouri  case,  erring  in  the  opposite  direction,  states  that  the 
English  decisions  are  that  the  question  is  wholly  one  of  law, 

and  not  at  all  of  fact ii.  211 

the  incorrectness  of  this  view  shown  both  as  to  the  holding  in 

England  and  in  this  country ii.  211-214 

the  whole  matter  summarized ii.  214,  215 

RAILWAY    FREIGHT    RECEIPTS    AND    SHIPS    BILLS    OF 
LADING. 
majority  of  the  Supreme  Court  of  Canada  held  that  company  not 
liable  for  goods,  on  freight  receipt  fraudulently  signed  by  station 

agent  without  receipt  of  goods ii.  1 

nor  for  draft  against  the  goods  in  hands  of  innocent  third  party 

without  notice ii.  1 

agent  in  signing  not  acting  within  scope  of  authority    ....  ii.  1 

judgment  of  the  majority  of  the  court ii.  1-5 

matter  conclusively  settled  in  England ii.  3 

freight  agent  clearly  no  greater  power  to  bind  railway  than  ship- 
master to  bind  ship ii.  4,  5 

in  both  cases  a  question  as  to  scope  of  the  agency ii.  5 

ship-master  cannot  act  beyond  limits  of  authority ii.  ."> 

any  more  in  signing  bills  of  lading  than  in  selling  ship      ...  ii.  <» 

in  former  case  the  pretended  shipper  is  necessarily  a  party  to  the 

fraud,  while  in  the  latter  the  buyer  may  not  be  ....  ii   »5 

very  old  English  cases  in  effect  holding  that  ship  not  liable     .     .      ii.  <i.  7 

fraud  is  in  the  master,  for  which  he  is  liable ii.  7 

it  is  not  the  fraud  of  the  shipowner ii.  7 

transfer  of  bill  of  lading  signed  where  goods  not  received,  passes 

no  property  in  the  goods ii.  7,  H 

held,  in  Ireland,  that  bill  of  lading  signed  before  the  goods  re- 
ceived is  fraudulent  and  void,  and  its  transfer  passes  no  prop- 
erty in  the  goods ii.  8 

where  goods  not  shipped,  consignor  has  no  action,  nor  has,  there- 
fore, consignee,  as  he  takes  only  consignor's  rights      ....  li-  8 


790  ANALYTICAL    INDEX. 

[References  are  to  both  text  aud  notes.] 

RAILWAY  FREIGHT    RECEIPTS    AND    SHIPS    BILLS    OP 
LADING  —  {Continued). 

biU  of  lading  is  not  conclusive,  even  as  to  quantity  of  goods 
shipped ii.  8 

master's  powers  shown  in  the  leading  English  case  of  Grant  v. 

Norway ii.  8-10 

not  the  agent  to  sign  bills  of  lading  for  goods  not  received     .     .  ii.  9 

where  agency  is  special  and  limited,  party  relying  on  it  must  es- 
tablish existence  of  authority ii.  10 

usually  agents  can  confer  only  such  title  as  they  are  authorized 

to  convey i.  60 

master's  authority  is  exhausted  when  signing  for  goods  received, 

and  additional  bills  of  lading  therefor  are  void ii.  10 

warehouseman  or  wharfinger  not  liable  for  goods  not  received, 

under  receipt  fraudulently  signed  by  his  servant    ....      ii.  10,  11 

limitations  on  master's  authority  shown ii.  11,  12 

master's  act,  in  excess  of  his  authority,  not  binding  on  the  own- 
ers, nor  upon  their  assignees ii.  12 

the  English  Bills  of  Lading  Act  makes  the  bill  of  lading  con- 
clusive against  the  party  signing  it,  but  does  not  enlarge  the 
liability  of  the  ship  or  owners ii.  12,  13 

owners  are  not  estopped  from  showing,  as  to  innocent  indorsees 
for  value,  that  statement  made  by  master  in  bill  of  lading,  in 
excess  of  authority,  is  untrue .      ii.  1-3,  14 

what  are  and  what  are  not  within  the  master's  authority  in  re- 
spect to  bills  of  lading ii.  14 

shipowner  not  estopped  by  master's  signature  from  showing  that 

the  goods,  or  some  of  them,  were  never  put  on  board      ...       ii.  14 

the  decisions  in  this  country  are  in  conflict ii.  15 

Armour  v.  Michigan  Central  R.  R.  Co.,  in  New  York,  is  the  lead- 
ing case,  holding  contra  to  the  English  cases ii.  15 

it  assumes  that,  in  New  York,  Grant  v.  Norway  had  been  over- 
ruled            ii.  15 

but  it  was  "  distinguished,"  not  overruled  there ii.  15 

and  the  English  cases  on  the  subject  were  treated  as  well  decided  ii.  16,  17 

on  the  ground  on  which  Grant  v.  Norway  was  distinguished  in 
the  New  York  cases.  Armour  v.  Railroad  is  shown  to  be  badly 
decided ii.  18-20 

distinction  stated  between  negotiable  paper  and  bills  of  lading     .        ii.  20 

distinction  shown  between  New  York  cases  named  aud  Grant  v.   ■ 

Norway ii.  20,  21 

marked  distinction  between  different  classes  of  agents   ...      ii.  21,  22 

unsoundness  of  rule  in  New  York,  etc.  R.  R.  Co.  v.  Schuyler,  as 

to  power  of  agents  shown ii.  22,  23 

previous  unanimous  judgment  of  the  New  York  Court  of  Ap- 
peals establishes  a  contrary  rule ii.  23 

followed  by  the  establishment  of  an  unsound  rule  by  a  divided 

court ii.  24 

the  unsoundness  of  this  latter  rule  being   shown   in   the   case 

itself ii.  24,  25 

and  arises  from  the  misapplication  of  the  principle,  that  the  ap- 
parent authority  is  the  real  authority ii.  25 

illustrations  furnished  of  the  unsoundness  of  the  rule   .     .     .       ii.  25-27 


I 


ANALYTICAL  INDEX.  791 

[References  are  to  both  text  and  notes.] 

RAILWAY  FREIGHT  RECEIPTS  AND  SHIPS  BILLS  OF 
LADI}iG  —  (Conlhm€d). 

other  New  York  cases  stated,  which  show  the  unsoundness  of  the 
rule  on  which  Armour  v.  Raih'oad  was  decided       ....      ii.  27,  28 

the  mistake,  as  in  the  New  Brunswick  case  of  Jones  v.  Foster, 
is  in  treating  the  acts  and  declarations  of  one  holding  out 
himself  as  agent  to  be  a  holding  out  by  the  principal       ...       ii.  28 

essential  distinction  pointed  out  between  bills  of  lading  and  ne- 
gotiable paper ii.  28,  29 

notwithstanding  bill  of  lading,  ship  not  liable  to  consignee  or 
indorsee,  where  goods  have  been  actually  shipped,  but  deliv- 
ered to  another  under  title  paramount ii.  29 

a  fortiori  ship  not  liable  when  no  goods  are  received ii.  29 

rule  as  to  one  of  two  innocent  parties  suffering  has  no  applica- 
tion where  the  misleading  act  is  done  by  a  third  person  with- 
out authority  or  misrepresentation  of  principal ii.  29-31 

distinction  between  a  statement  made  directly  to  a  defrauded 
party,  and  by  a  principal,  from  a  statement  to  a  fraudulent 
party,  repeated  by  him,  and  made  not  by  a  principal,  but  by 
one  out  of  the  scope  of  his  employment ii.  31 

in  this  respect,  Grant  v.  Norway  and  Armour  v.  Railroad  are 

similar  cases ii.  31,  32 

a  later  New  York  case  iu  an  inferior  court  ignores  the  distinction 
which  shows  Grant  v.  Norway  to  be  well  decided,  and  Armour 
V.  Railroad  to  be  badly  decided ii.  32 

Kansas  case,  purporting  to  follow  the  New  York  case,  relies  on 

two  other  cases ii.  32,  33 

in  one  of  these  a  receipt  was  given  to  the  principals  themselves, 
who  were  held  estopped  by  their  own  act,  and  in  the  other  case 
it  was  held  that,  the  goods  not  having  been  received,  even  prin- 
cipals were  not  estopped  by  having  stated  otherwise  ....       ii.  33 

case  in  Nebraska,  purporting  to  follow  Armour  v.  Railroad,  in- 
correctly alleges  that  estoppel  was  overlooked  in  Grant  u.  Nor- 
way, although  it  was  there  expressly  decided  that  there  was  no 
estoppel  in  the  case ii.  -34 

doctrine  of  the  English  cases  summarized ii.  34 

case  in  Pennsylvania  decided  on  the  ground  that  as  New  York 
was  the  place  of  the  contract,  they  were  bound  by  New  York 
decisions ii.  34,  35 

but  by  these,  even  as  shown  by  Armour  v.  Railroad  itself,  the 
latter  case  was  wrongly  decided,  and,  therefore,  if  bound  by 
New  York  decisions,  the  Pennsylvania  case  was  also  wrongly 
decided ii.  3") 

it  was  also  wrongly  decided  on  the  assumption  that  it  accorded 

with  their  own  previous  decisions ii.  30 

neither  the  only  Pennsylvania  case  cited,  nor  the  English  case 

cited,  sustains  the  decision ii.  3<i 

decision  in  Armour  i-.  Railroad  considered  not  only  unsound,  but 

most  pernicious  in  its  consequences ii.  30,  37 

leading  law-writers  in  this  country  do  not  sustain  the  doctrine  of 

that  case ii.  37,  38 

the  holding  out  as  to  the  scope  of  the  agency  must  be  by  the 

principal,  not  by  the  agent,  to  bind  the  former ii.  39 


792  ANALYTICAL    INDEX. 

[References  are  to  both  text  and  notes.  ] 

RAILWAY   FREIGHT    RECEIPTS    AND    SHIPS    BILLS    OF 
LADING  —  (Continued). 
the  New  York  "rule"  relied  on,  as  to  the  power  of  an  agent  by  his 

unautliorized  acts  to  bind  his  principal,  considered  nonsensical    .^    ii.  39 
the  correct  rule,  as  to  the  agent's  power,  quoted  from  Story  on 
Agency,  and  from  Smith's  Mercantile  Law,  and  supported  by 
an  immense  number  of  both  American  and  English  cases    .       ii.  39,  40 
absurdity  of  the  New  York  "  rule  "  demonstrated      .     .     .     .       ii.  40,  41 
■well  decided  New  York  cases  show  the  unsoundness  of  the  "  rule  " 

on  which  Armour  v.  Railroad  rests ii.  41 

English  cases  being  in  antagonism  to  such  rule  shown  in  Mary- 
land case ii.  41,  42 

and  the  attempt  in  New  York  to  distinguish  the  English  cases 

shows  the  unsoundness  of  Armour  v.  Railroad ii.  42 

numerous  American  cases,  State  and  Federal,  including  New 
York  cases,  fully  stated,  to  show  the  unsoundness  of  the  New 
Yoick  "  rule,"  and  the  unsoundness  of  the  decision  of  Armour 

V.  Railroad ii.  43-64 

long  before  Grant  ;;.  Norway  was  decided,  master's  unauthorized 
bill  of  lading,  in  hands  of  an  indorsee,  an  innocent  third  per- 
son without  notice,  held,  in  Massachusetts,  to  give  no  claim 

against  owner ii.  43 

and  this  in  a  case  too  where  the  goods,  for  which  the  bill  of  lad- 
ing was  given,  were  shipped ii.  43 

so,  in  New  York,  it  was  held,  forty  years  ago,  that  the  master's 
signing  a  bill  of  lading  not  within  scope  of  his  agency  did 

not  bind  owners ii.  43 

and,  ten  years  later,  it  was  there  held  that  while  the  master  was 
estopped  by  the  bill  of  lading,  the  owner  was  not  liable,  be- 
cause the  goods  were  not  shipped ii.  43,  44 

the  master,  not  the  owner,  was  estopped,  and  the  assignee  had  no 

better  rights  than  the  one  through  whom  he  claimed  ....        ii.  44 
the  principle  governing  such  cases,  supported   by  hundreds   of 
American   and   English   cases,   well   stated   by   Chief-Justice 

Shaw ii.  44,  45 

showing  absurdity  of  the  "  rule  "  upon  which  Armour  t;.  Railroad 

is  made  to  rest ii.  45 

the  rule,  as  to  one  of  two  innocent  persons  suffering,  acts  in  favor 
of  the  shipowner,  and  against  the  party  taking  the  fraudu- 
lently signed  bill  of  lading ii.  45 

so  Gray,  C.  J.,  shows  that  a  special  and  limited  power  cannot  be 

enlarged  by  the  agent's  own  declarations ii.  46 

the  U.  S.  Supreme  Court  in  an  able  judgment  shows  that  the  ap- 
parent authority  of  the  master  is  only  to  sign  bills  for  cargo 
actually  shipped,  as  he  can  only  sell  the  .ship  when  necessity 

makes  him  the  agent  to  do  so ii.  47-51 

same  principle  decided  in  the  same  court  long  before  Grant  v. 

Norway  was  decided ii.  51 

and  affirmed  in  other  decisions  in  the  same  court,  and  by  the 

other  Federal  courts ii.  51-56 

the  State  courts  of  Pennsylvania,  Massachusetts,  Maine,  'Ohio, 
Louisiana,  Rhode  Island,  North  Carolina,  Missoui-i,  and  Mary- 
land, have  all  given  decisions  of  a  similar  character    ...      ii.  56-63 


ANALYTICAL   INDEX.  793 

[References  are  to  botli  text  and  notes.  ] 

RAILWAY   FREIGHT    RECEIPTS    AND    SHIPS    BILLS    OF 

LADING—  (Co;i/ni«er7). 

exposure  of  the  iinsounduess  of  the  New  York  "  rule  "  on  which 

Armour  v.  Raih-oad  is  made  to  rest ii.  64-74 

the  origin  and  history  of  the  rule ii.  64-73 

meaning  shown  of  "apparent  authority ' '  being  the  real  authority   ii.  66-69 

even  New  York  cases,  where  the  "  rule  "  is  formulated,  and  the 
cases  they  cite,  show  its  unsoundness  as  applied  in  Armour  v. 
Railroad ii.  70,  71 

well-decided  New  York  cases  show  that  an  agent  with  limited 
and  circumscribed  power  as  a  railway  station-agent,  or  a 
ship-master,  cannot  bind  his  principal  by  an  act  beyond  his 
authority ii.  70,  71 

the  case  in  which  the  "  rule  "  originated  is  reall}'  an  express  au- 
thority against  the  holding  in  Armour  v.  Railroad       ....        ii.  73 

and  the  original  case  itself,  acting  on  the  so-called  "  rule,"  was  by 

a  divided  court ii.  64 

was  very  much  doubted  by  the  court  itself ii.  71,  7*2 

and  the  case  itself,  based  on  its  "  rule,"  was  actually  reversed  in 
the  New  York  Court  of  Erroi-s ii.  64 

Story,  not  knowing  that  the  original  case  was  reversed,  cites  it,  not 
to  sustain  such  a  decision  as  Armour  v.  Railroad,  but  to  show, 
in  effect,  that  an  agent  for  a  special  purpose  can  act  only  to 
the  extent  of  his  authority    . ii.  73,  74 

Armour  v.  Railroad  and  the  other  cases  following  it  are  shown,  on 
a  fair  analysis  of  the  "  rule  "  itself  on  which  they  rest,  to  have 

been  badly  decided ii,  73 

RATIFICATION.      (See    Directors    of    Companies;    Infant; 
Rescission;   Void  and  Voidable.) 

in  England,  by  statute,  infant's  contracts  for  goods  not  necessa- 
ries, void,  and  cannot  be  ratified i.  110 

an  infant  on  coming  of  age  can,  at  common  law,  ratify  or  disallow 

his  contracts  not  for  necessaries i.  117 

affirmation  being  in  nature  of  new  contract,  any  contract  which 
an  adult  can  make  can  be  ratified  by  an  infant  on  coming  of 
age .' i.  117 

ratification  by  infant  must  be  with  intention  to  confirm  with 

knowledge  of  voidability i.  118,  128 

must  be  clear  and  unequivocal i.  123-127 

mere  acknowledgment  of  existence  of  debt,  not  sufficient  for 
ratification,  —  there  must  be  promise,  witli  knowledge  of  facts, 
of  assuming  a  liability  from  which  infant  knows  he  is  dis- 
charged by  law i.  130 

ratification  of  old  promise  of  marriage  by  infant,  insufficient  in 

England  under  Infants'  Relief  Act;  new  promise  ncce.ssary     .       i.  127 

question  for  the  jury  whether  new  promise  or  ratification  of  old       i.  127 

where  infant  bought  stock  and  sold  part  after  attaining  major- 
ity, then  not  objecting  to  his  name  being  {)Iaced  on  the  list  as 
contributor,  he  affirmed  the  transaction  and  was  liable  for  his 
un.sold  sliares i.  127,  128 

under  statutes  requiring  infant's  promi.se  or  ratification  to  be  in 
writing,  there  must  be  a  recognition  of  the  debt  as  a  binding 
one i.  120 


794  ANALYTICAL    INDEX. 

[References  are  to  both  text  and  notes.] 

RATIFICATION  —  (Continued). 

■where  infant  elects  to  affirm  an  act,  he  must  do  so  as  a  whole      .       i.  129 

he  cannot  retain  personal  property  purchased,  and  plead  infancy 

as  a  defence  to  a  note  for  it i.  130 

married  woman's  contract  absolutely  void,  and  therefore  incapa- 
ble of  ratification 1.  149 

a  married  woman  making  payments  on  stock  purchases  after  dis- 
ability removed,  cannot  recover  for  payments  made  during  dis- 
ability        i.  237 

by  abandonment  of  ship  as  between  insurers  and  insured,  owner 

does  not  ratify  wrongful  sale  by  master i.  265-270 

where  power  exists  to  set  aside  unauthorized  acts  of  agent,  it 
should  be  duly  acted  on,  or  delay  may  amount  to  rati- 
fication         i.  295 

ratification  of  acts  of  directors  by  stockholders  estop  them  from 
setting  aside  such  acts  as  being  in  excess  of  authority  of 
directors i-  296 

on  ratification  by  directors  of  sale  of  stock  by  president  and 

cashier  to  themselves,  the  latter  are  concluded i.  297 

where  directors'  purchase  of  company  void  of  fraud,  it  may  be 

ratified  by  stockholders i.  299 

said  that  the  ratification  cannot  be  by  majority i.  299 

but,  generally,  in  absence  of  fraud,  it  can  be i.  299 

■where  contract  made  by  agent  for  and  in  name  of  principal,  and 

latter  ratifies,  principal  bound  and  not  ageilt i.  302 

director's  purchase  of  stock,  deposited  with  company  as  security, 
with  power  of  sale,  held  ratified  by  delay  and  laches  amounting 
to  ratification i-  304 

contract  induced  by  fraud  may  be  ratified  or  rescinded  by  party 

defrauded i.  312,  313 

company  can  adopt  and  ratify  without  seal  unauthorized  acts  of 

officers  of  company i-  321 

under  English  Companies'  Acts  the  company  cannot  ratify  acts 

not  within  scope  of  the  memorandum  of  association    ....       i.  321 

where  purchaser  of  shares  might  rescind  contract  for  fraud,  but, 
with  knowledge  of  the  fraud,  affirms  the  contract,  he  cannot 
thereafter  rescind  it i-  367 

■where  right  exists  to  object  to  shares,  that  right  may  be  lost  by 

delay  and  acquiescence i-  370 

acquiescence  gives  no  validity  to  issue  of  stock  beyond  limit  of 

corporation i-  391 

where  agent  sells  stock,  purchaser  giving  receipt  therefor  and 
paying  on  account,  and  company  ratifies  the  sale,  purchaser  is 
bound  as  a  stockholder i-  393,  394 

as  to  extent  to  which  town  voters  can  bind  municipality  iu  New 

England  towns  by  ratification i.  409,  410 

as  to  ratification  of  municipal  bonds,  see  Municipal  Corpora- 
tion Transactions,  and i-  406-443 

where  transaction  between  parties  occupying  fiduciary  relations 
has  been  in  good  faith  and  with  full  knowledge,  delay  and 
acquiescence  may  prevent  relief i.  452 

but  a  strict  rule  applies  as  to  this,  and  transaction  to  be  sus- 
tained must  be  very  clear i.  452-454 


I 


ANALYTICAL    INDEX.  795 

[References  are  to  both  test  and  notes.] 

B.ATIFICATIO'S  —  (Continued). 

but  where  transaction  has  been  adopted  and  approved  and  is  on 
full  consideration,  long  delay  may  constitute  laches  and  amount 
to  a  conclusive  ratification i.  455  455 

•where  there  are  gross  laches  and  long  acquiescence,  some  strong 

impediment  must  be  shown  to  justify  it i.  456 

sale  may  be  ratified  by  bringing  an  action  for  proceeds  ....      i.  460 

■where  party  signing  a  contract  as  agent  has  no  principal,  signer 
is  liable,  and  is  not  relieved  by  ratification  of  his  act  by  a 
stranger i.  539,  540 

where  principal  acquiesces  in  acts  of  agent,  he  is  bound  though 

acts  were  without  authority       i.  593 

acquiescence  may  be  conclusive  even  against  the  requirements  of 

the  Statute  of  Frauds i.  593 

ratification  of  acts  of  agent i.  622-630 

(See  Principal  and  Agent.) 

acceptance  of  goods  under  the  Statute  of  Frauds  may  be  implied 

where  not  duly  repudiated  after  receipt ii.  412 

REASON'ABLE   TIME. 

where  seller  has  option  of  naming  a  day  by  which  price  of  goods 
sold  is  to  be  fixed,  and  does  not  exercise  it  in  reasonable  time, 
the  buyer  may  fix  the  day  and  notify  the  seller i.  96 

reasonable  time  for  giving  of  something  in  earnest  or  part  pay- 
ment to  take  the  case  out  of  the  Statute  of  Frauds  may  be  any 
time  before  action  brought,  in  absence  of  the  earlier  cancella- 
tion of  the  contract ii.  284 

RECEIPT.     (See  Actual  Receipt.) 

REDUCTION   INTO   POSSESSION.     (See  MarrieO  Women.) 

RESCISSION.     (See  Infant;  Ratification.) 

infant  has  right  to  rescind  contract  not  for  necessaries,  whether 

fair  or  unfair i.  110 

how  infant  may  rescind  his  contracts i.  118 

where  infant  seeks  rescission   of   contract  not  for  necessaries, 

where  he  has  received  a  consideration  he  must  restore  it.     .     .       i.  122 

and  where  he  rescinds  a  contract  under  which  he  has  obtained 

goods,  the  vendor  can  reclaim  them i.  123 

sale  by  guardian  of  stock-certificates  endorsed  by  infant  ward 

for  that  purpose,  held  revocable  by  infant i-  123 

Parsons,  Cliitty,  Story,  and  some  of  the  Engli.sh  cases,  are  to 
effect  that  when  infant  rescinds  contract  on  which  he  has  paid 
money,  he  cannot  recover  it  back i.  123 

this  doctrine  expressly  repudiated  in  this  country i-  123 

English  authorities  fully  examined i-  123-125 

conclusion  is  that  he  can  recover  money  back  where  considerar 

tion  has  failed,  but  not  where  he  has  taken  benefit  under  it     .       i.  125 

cases  in  this  country  sustain  these  conclusion.s i-  125,  120 

infant,  for  fraud,  can    rescind  contract  and   recover   back  his 

money  paid  under  the  contract 1.  123 

acts  which  constitute  an  avoidance  or  rescission  of  infant's  void- 
able contracts i.  12fi 

the  avoidance  of  deed,  and  not  its  ratification,  the  law  requires 

to  be  equally  solemn  with  the  deed i.  12< 


796  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

RESCISSION—  (Con/umec/). 

infant  trustee  allowing  his  name  to  be  used  in  proceedings 
against  his  principal,  is  not  a  retraction  of  repudiation  of  lia- 
bility for  shares  registered  by  principal  in  name  of  infant   .     .       i.  131 

rescission  of  deed  should  be  within  reasonable  time,  or  delay 

may  amount  to  affirmance  or  ratification i.  132 

and  steps  should  be  taken  as  soon  as  can  be  reasonably  done  after 

party  is  aware  of  the  facts i.  306 

■where  one  nominally  acting  as  agent  sells  his  own  property  to  his 

principal,  latter  can  rescind  contract i.  308 

but  if  he  do  not  rescind,  or,  after  knowledge,  he  render  rescission 
impossible,  he  cannot  recover  agent's  profits,  or  difference  be- 
tween price  paid  and  value i.  308,  309 

but  if  agent  fail  to  disclose  his  interest,  principal,  on  discovery, 
can  rescind  contract,  and,  if  rescission  is  impossible,  can  re- 
cover secret  profit  made  by  agent i.  310-312 

the  principal  cannot,  with  knowledge,  both  affirm  and  rescind  i.  308-312 

contract  cannot  be  rescinded  unless  status  quo  can  be  restored     .       i.  334 

■where  allotment  of  shares  not  made  in  reasonable  time,  applicant 

may  rescind  application i.  364 

promoters  of  company  held  liable  to  refund  secret  profits  though 

contract  not  rescinded i.  367,  368 

as   between   company  and  shareholder,  prompt  repudiation   of 

shares  for  former's  fraud  good  defence  in  action  for  calls     .     .       i.  373 
RES  JUDICATA.     (See  Lis  PexNdens.) 

rules  governing i.  385 

RESTITUTIO    IN    INTEGRUM.      (See    English    Companies' 
Acts;   Infant.) 

■where  lunatic's  contract  set  aside  because  of  his  notorious  in- 
sanity, doctrine  only  applies  to  extent  of  lunatic's  benefit  by 
contract ' i.  138 

■where  lunatic's  want  of  capacity  was  known,  his  guardian  re- 
covered property  exchanged  without  res.  in  int i.  139 

where  party  has  contracted  innocently  with  person  of  weak  mind, 

contract  will  not  be  set  aside  without  res.  in  int i.  139 

infant's  and  idiot's  contracts  cannot  be  rescinded,  and  property 

recovered  back,  without  return  of  consideration i.  140 

where  principal  has  right  to  rescind  his  agent's  sale  to  former, 
but,  after  knowledge,  acts  with  property  so  as  to  render  re- 
scission impossible,  he  cannot  recover  agent's  profit  on  sale,  nor 
difference  between  price  and  value i.  308,  309 

but,  when  agent  fails  to  disclose  his  interest,  principal,  on  dis- 
covery, can  rescind  contract,  and  if  rescission  is  impossible  he 
can  recover  secret  profit  made  by  agent i.  310-312 

doctrines  as  to  restitutio  in  integrum i.  331-337 

promoters  of  company  held  liable,  as  occupying  fiduciary  rela- 
tion, to  refund  secret  profits,  without  rescission  of  contract  .  i.  367,  368 

party  rescinding  contract  for  fraud  must  do  so  in  toto,  and  return 

what  he  has  received i.  406,  407 

the  doctrine  of  restitutio  in  integrum  does  not  apply  between  prin- 
cipal and  agent  as  between  v'^endor  and  vendee i.  606 

but  where  agent  fraudulently  sells  his  own  goods  to  his  principal, 

then  the  doctrine  applies ,     .     .       i.  618 


ANALYTICAL   INDEX.  797 

[References  are  to  both  text  and  notes] 

REVOCATIOX.     (See  Fiduciary   Relations;   Fraud;    Gift; 

Ratification;  Rescission;  Salk.) 
SALE.  (See  Bailments;  Barter;  Definitions;  Intoxicating 
Liquor  Sales;  Pledge;  Price.  For  Purchases  and  Sales 
by  Agents,  Corporations,  Drunkards,  Infants,  Lunatics, 
Married  Women,  Ship-masters,  etc.,  see  under  these  respec- 
tive headings.) 

what  it  is i.  1-32 

transfer  of  the  title  to  the  property  for  a  valuable  consideration  is  i.  1  el  seq. 

where  the  property  in  a  community  is  transferred  without  a  val- 
uable consideration,  it  is  a  gift  and  not  a  sale i.  2,  6 

where  identical  property  in  original  or  altered  form  not  to  be  re- 
turned, property  transferred  is  sold,  not  bailed i.  4 

where  goods  are  sold  payable  by  bill,  and  bill  is  given,  price  can- 
not be  recovered  until  period  of  bill  has  elapsed i.  7 

but  if  default  made  in  giving  bill,  action  lies  at  once  to  recover 

its  value.     (See  Action.) i.  7 

a  sale  imports  a  quid  pro  quo,  in  some  way  or  another,  enuring  to 

the  benefit  of  the  seller i.  11 

a  barter  or  exchange  is  a  double  sale i.  16-23 

whether  a  transaction  is  a  sale  or  not   is  often  tested  by  its 

coming  or  not  within  the  Statute  of  Frauds i.  16 

an  agreement  to  manufacture   lumber,  not  coming   within   the 

Statute  of  Frauds,  is  not  a  contract  of  sale i.  16 

hay  being  delivered,  to  be  paid  in  manure  resulting  from  the 
feeding  of  the  hay,  the  property  in  the  mean  time  to  remain  in 
the  original  owner,  though  being  changed  in  form,  the  title  did 
not  pass  as  by  a  sale i.  16 

the  essentials  of  a  sale  are  sometimes  stated  as  a  subject,  a  price, 

and  the  consent  of  the  contracting  parties i.  16,  17 

may  be  in  consideration  of  notes  previously  given i.  IS 

transfer  of  goods  for  goods  held  a  sale i.  19 

property  transferred  on  a  union  of  churches  without  pecuniary 

consideration,  not  a  sale i.  19,20 

goods  may  be  sold  to  laborers  and  paid  for  by  past  or  subsequent 

labor i.  21 

where  goods  were  sold  payable  in  other  goods,  held,  in  Xew  York, 
that  while  there  was  a  sale  on  one  side,  there  was  none  on  the 
other ;  soundness  of  the  decision  questioned i   22,  2:> 

and  reversed  in  later  New  York  case i-  23 

Statute  of  Frauds  complied  with,  on  sale  of  goods  for  goods,  by 
receipt  of  part  of  goods  as  payment  . i-  21 

where  an  agent  is  an  agent  only  to  sell  goods,  he  cannot  barter 
them,  as  this  would  make  him  also  agent  to  buy;  he  must  sell 
for  money '    -9 

set-off  in  principle  is  a  double  sale  or  barter      .......         i-  32 

sale  may  be  revoked  where  made  on  that  condition,  or  for  fraud 
or  mistake,  or  for  undue  influence  where  fiduciary  relations 
exist '-8') 

distinguishing  sale  from  bailment  tlierf)  must  be  intention  in 

former  to  pass  absolute  property  in  subject i   92 

where  oral  agreement  for  sale  or  exchange  of  land,  it  i.«i  within 

Statute  of  Frauds »•  "- 


798  ANALYTICAL    INDEX, 

[RefereDces  are  to  both  text  and  notes.] 
SALE  —  (^Continued). 

where  the  facts  show  that  the  property  in  goods  has  absolutely 

passed,  even  though  it  be  stated  that  it  shall  not,  it  is  a  sale  .  i.  96 
or  where  a  device  is  used  in  such  case,  it  is  still  a  sale  ....  i.  97 
but  where  loss  by  sale  or  fire  remains  in  deliverer,  it  is  not  a 

sale i.  98 

even  where  the  agreement  provides  that  the  property  in  the  goods 

shall  pass  on  subsequent  payment i.  98 

where  sale  to  be  converted  into  bailment,  property  passes  by  sale, 

and  is  subject  to  execution  against  vendee i.  98 

where  sale  with  right  of  re-purchase  and  right  not  exercised 

within  time  agreed,  the  re-purchase  fails,  but  money  paid  on 

account  is  recoverable  back i.  98 

so  where  securities  transferred  to  receivers  as  absolute  owners, 

with  right  of  redemption,  it  is  a  sale,  and  if  right  not  exercised 

within  agreed  time,  it  is  lost i.  98 

but  where  property  is  only  to  pass  when  payment  made,  there  is 

no  absolute  sale  until  payment .         i.  98 

■where  sale  actually  made  property  passes,  though  agreement  be 

otherwise,  but  where  there  is  no  transmission  of  property  there 

is  no  sale i.  98 

even  though  goods  be  received  under  agreement  for  future  sale   .        i.  99 

cases  of  mixed  sale  and  bailment ....      i.  99,  100 

where  doubtful  on  facts,  question  for  jury  which i.  100 

where  bailee  has  right  of  electing  to  convert  bailment  into  sale, 

property  passes  on  election i.  100 

purchasers  agreeing  to  pay  named  price  shows  sale,  where  sale  of 

goods  with  privilege  of  return i.  100 

power  to  sell  does  not  include  power  to  pledge i.  106 

though  where  power  to  sell  purchaser  may  obtain  title  against 

owner,  this  rule  does  not  apply  to  pledge, i.  106 

where  property  held  without  power  either  to  sell  or  pledge  was 

sold,  title  did  not  pass .    i.  106,  107 

where  agent  sells  goods  against  authority,  principal  may  disaffirm 

sale  and  recover  goods i-  106 

but  not  so  where  he  intrusts  agent  with  indicia  of  right  to  sell, 

though  his  secret  instructions  are  violated i.  106 

seller  cannot  be  agent  of  buyer i.  294 

sale  of  stock  passes  the  dividends  declared  after  the  purchase,  as 

sale  of  animals  passes  the  future  increase i.  345,  346 

SEAL.     (See  Corporation  ) 
SET-OFF. 

payment  of  calls  on  unauthorized  stock  cannot  be  setoff  in  bank- 
ruptcy against  calls  on  authorized  stock i.  391 

fraud  to  treat  unpaid  subscription  for  stock  as  ordinary  indebted- 
ness, and  it  is  not  a  subject  of  set-off i.  403 

(See  Principal  and  Agent,  as  to  setting  off  claims  by  and 

against  agents  ) 
rules  as  to  set-off  where  contract  made  by  agent  for  undisclosed 

principal i.  524,  525,  544,  545,  595-597 

distinction  between  broker  and  factor  as  to  set-off i.  571 

factor  selling  under  del  credere  commission  as  his  own,  buyer 

without  notice  may  set  off  claims i-  576 


\ 


ANALYTICAL   INDEX.  799 

[References  are  to  both  text  and  notes.] 
SET-OFF  — (Continued). 

where  goods  are  delivered  as  a  sale,  the  transaction  is  a  set-off 

and  not  a  payment ii.  272 

SHIP-MASTER.     (See  Agents  of  Necessity;  Evidence;  Lien) 

is  agent  of  necessity i.  14,3,  IGO 

where  repairs  of  ship  are  necessary,  master  is  agent  of  necessity 

to  have  them  done i.  160 

by  civil  law  master  can  impawn  ship  and  tackle  in  case  of  necessity      i.  248 

and  so  early  held  to  be  common  law  of  England i.  248 

though  master  not  bound  to  repair  ship,  his  contract  for  necessary 

repairs  binds  owner i.  248 

legality  of  his  acts  depends  on  necessity i.  248 

where   such   exists  can   jettison  cargo,  or  can  sell  it;  can  buy 
materials  and  have  repairs  made,  and  can  agree  on  terms  of 

salvage  of  ship  and  cargo i.  248 

in  extreme  cases  can  pass  title  to  ship  and  cargo i.  249 

sale  becomes  a  necessity  when  nothing  better  can  be  done  ...       i.  249 
where  master  has  an  honest  purpose  and  condition  of  ship  re- 
quires it,  he  can  sell i.  249 

where  acting  with  advice  of  others  of  skill  and  experience,  strong 

evidence  of  justification i.  249 

master  entitled  to  give  great  weight  to  such  advice 1.  250 

justified  where  such  advice  would  be  followed  by  prudent  persons      i.  251 

his  agency  arises  from  the  necessity  of  things i.  251 

so  where  he  is  in  port  where  owner  of  ship  has  credit,  he  has  no 

power  to  hypothecate  cargo i.  251 

nor  where  opportunity  .of  communicating  with  owner     ....       i.  251 
can  only  sell  ship  when  acting  in  good  faith,  in  exercise  of  his 

best  discretion,  and  under  compulsion  of  necessity      ....       i.  252 

such  necessity  must  be  a  moral  necessity i.  252 

where  he  sells  without  necessity  no  property  passes i.  253 

burden  on  purchaser  to  show  that  master  made  sale  in  good  faith, 

sound  discretion,  and  of  necessity i.  253 

where  great  delay  and  uncertainty  in  communicating  with  own- 
ers or  consignees,  master  may  hypothecate  ship,  freight,  and 

cargo,  for  necessary  repairs i.  253 

and,  in  such  case,  the  bottomry  bond  will  bind  the  cargo  as  well 

.     as  ship  and  freight i.  253 

as  master  is  agent  of  necessity  and  not  of  choice,  he  must  com- 
municate with  owners  or  consignees  where  that  is  feasible  .     .       i   251 
where  unable  to  obtain  money  from  owner  for  necessary  repairs, 
he  may  raise  money  for  repairs  by  bottomry  of  ship,  freight, 

and  cargo i.  254 

when   money  supplied    by  foreign  lender,  presumption  i.s  that 
bottomry  .security  was  contemplated,  the  presumption  being 

strengthened  where  lender  can  arrest  ship i.  254 

whether  money  advanced  is  loan  or  advance  on  freight  is  gov- 
erned by  facts  of  the  case i.  254 

if  repairs  of  ship  produce  no  benefit  or  prospect  of  benefit  to 

cargo,  inaster  cannot  bind  the  cargo  for  tlio  repairs     ....       i.  251 
even  where  the  owner  is  insolvent  he  .should  be  communicated 
with  where  practicable,  and  if  not  done,  a  bottomry  bond,  though 
appearing  a  matter  of  necessity,  will  be  invalid     .     .     .     .   i.  255,  250 


800  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

SlUF-MASTER—  (Continued). 

and  a  notice  to  owners  of  cargo  of  necessity  for  repairs  of  ship, 
but  silent  as  to  bottomry  bond,  bond  against  ship,  freight,  and 
cargo,  invalid  as  to  cargo i.  256,  257 

master  is  always  the  agent  for  the  ship,  and  in  special  cases  of 

necessity  is  the  agent  for  the  cargo i.  257 

he  is  the  appointed  agent  to  the  ship;  the  involuntary  agent  of 

the  cargo , i.  257 

where  necessity  for  sale  exists,  and  inability  to  communicate 
with  owner,  master  is  agent  of  owner  not  only  with  the  power 
but  under  the  obligation  of  acting  within  his  powers  for  the 
owner i.  258 

communication  need  not  be  made  where  an  answer  cannot  be 
obtained,  or  where  no  reasonable  expectation  exists  of  its  being 

obtained  in  time  before  sale i.  258 

•    where  goods  are  perishable,  immediate  sale  of  them  may  be 

necessary i.  258 

but  those  in  good  order  and  condition  usually  should  not  be  sold 

without  order  of  owners  on  communication  with  them  ...       i.  258 

if  master  sell  without  justification  he  makes  himself  personally 
liable i.  258 

■when  master  justified  in  selling  at  intermediate  port      ....       i.  258 

only  extreme  necessity  will  justify  sale  bj^  master      .....       i.  259 

whether  such  necessity  existed  question  of  fact  for  jury     ...       i.  259 

sale  only  justifiable  as  last  resort i.  259,  2G0 

as  master  is  an  agent  of  necessity,  such  agency  is  limited  by 
necessity,  and  therefore  cannot  generally  bind  owners  even  for 
necessaries  in  home  port i.  259-261 

cases  in  this   country  considering  master's   duty,    power,    and 

liability i.  258-261 

proof    that  supplies  furnished  master  are  necessaries  must  be 

made  by  party  supplying i.  261 

in  England,  held  that  proof  must  be  made  that  the  supplies  are 

such  as  prudent  owner  would  have  ordered i.  2G1 

but  in  this  country,  in  some  cases,  the  decision  as  to  what  are 

necessaries  is  left  rather  to  the  master  than  to  the  supplier  .     .       i.  261 

the  better  rule  would  seem  to  be  that  the  burden  of  proof  to 
show  that  the  supplies  are  necessary  is  on  the  party  supplying 
them i.  262,263 

fair  support  by  evidence  of  existing  necessity  is  sufficient  ...       i.  263 

if  by  fair  inquiry  such  articles  seem  necessaries,  and  are  fur- 
nished the  master  for  the  ship  in  good  faith,  the  necessary 
evidence  is  furnished i.  263 

where  money  for  necessary  supplies  at  foreign  port  obtainable 
from  owner's  agent,  another,  who,  on  fair  inquiry,  could  have 
known  of  this,  cannot  recover  for  money  furnished  the  master 
for  the  ship i.  262-284 

principle  is  that  money  or  supplies  must  be  reasonably  neces- 
sary according  to  ordinary  course  of  prudent  conduct,  of  which 
jury  must  judge .       i.  264 

therefore  not  necessary  for  master  to  obtain  from  others  when 

owner  or  agent  present  to  supply i.  264. 265 

American  cases  examined  as  to  master's  authority    .     .     .     .     i.  265-269 


ANALYTICAL    INDEX.  801 

[References  are  to  both  text  and  uotes.l 

SniF-M  ASTER— (Continued). 

abandonment  as   between   insurer  and  insured  does  not  estop 

owner  from  claiming  that  sale  of  ship  was  not  necessary      .    i.  265-270 

as  the  agency  is  limited  by  the  necessity,  where  the  charterer  is 
to  provide  for  expenses  of  the  ship,  owners  not  bound  to  master 
for  them i.  270 

as  master  is  agent  of  necessity,  he  must  act  for  best  interest  of 

parties  interested,  who  are  then  liable  for  necessary  expenditure       i.  270 

so  where  he  has  reasonable  ground  to  apprehend  capture,  may 

delay  ship  without  liability  for  damage  to  cargo  by  delay    .     .       i.  270 

even  when  goods  are  perishable,  where  master  can  reasonably 
communicate  with  owners,  must  do  so,  or  sale  invalid     .     .    i.  271,  273 

but  where  he  cannot  communicate  with  owners,  he  may  sell  part 

of  cargo  for  money  to  repair  vessel i.  272 

sacrifice  for  such  purpose  subject  of  general  average,  whether 

made  by  sale  of  part  of  cargo  or  by  payment  of  marine  interest       i.  272 

necessity  for  sale  must  be  under  circumstances  justifying  sale,  or 

it  will  be  invalid i.  272,  273 

where  master  held  out  as  agent  by  owners,  they  are  liable,  under 
his  contract,  for  repairs  and  equipments  to  vessel   .     .     .     .    i  273,  274 

where  master  makes  sale  without  necessity,  and  not  as  agent  of 
charterers,  they  are  not  liable  for  his  acts i.  274,  275 

where  bottomry-bonds  are  executed  by  master  of  foreign  ship 
as  agent  of  necessity,  for  repairs,  the  law  of  the  place  where 
ship  belongs  governs  the  nature  of  the  owners'  liability  ...       i.  275 

even  where  ship  is  lost,  if  cargo  can  be  saved  for  benefit  of 
owner,  unnecessary  sale  by  master  will  pass  no  title  to  pur- 
chaser of  cargo  as  against  owner  or  underwriters    .     .     .     .   i.  276,  277 

nothing  but  necessity  can  justify  such  sale i.  277 

held  by  the  United  States  Supreme  Court,  as  in  England,  that 
master  acts  for  owner  of  cargo  because  a  necessity  arises  for 
him  to  do  so,  and  therefore  can  only  sell  or  hypothecate  in  case 
of  necessity,  which  develops  his  authority  and  limits  his 
powers i.  277 

burden  of  proof  on  buyer  or  lender  to  show  at  least  that  sale  or 

hypothecation  is  apparently  proper i  278 

same  rule,  but  with  less  strictness,  applies  to  hypothecation  of 

ship i.  278 

where  cargo,  to  better  advantage  to  its  owner,  can  be  forwarded 
by  another  ship,  master  has  no  power  to  hypothecate  cargo  for 
repairs  to  ship i.  278 

maritime  hypothecation  is  the  creature  of  necessity  and  distress  .       i.  278 

bond  attaches  to  ship,  as  long  as  she  exists  in  specie,  and  to  cargo 

saved  for  unpaid  balance i.  27ft 

in  England,  held  master  cannot  create  a  lion  on  vessel  except 
by  bottomry  bond,  but  in  the  United  States  it  is  .settled  tliat 
master  of  foreign  ship  may  create  a  lien  on  ship  without  a 
bottomry  bond i   27ft 

but  that  apparently  a  case  of  necessity  must  exist  is  ancient  and 

well-established  law »■  279 

to  make  such  necessity  the  repairs  and  supplies  must  be  neces- 
sary, and  it  must  be  apparently  necessary  to  have  a  credit  to 
procure  them »•  279 

VOL.    II.  '  51 


802  ANALYTICAL    INDEX. 

[References  are  to  both  text  and  notes.] 
SHIP-MASTER  —  (^Continued). 

where  master  has  funds  for  the  purpose,  and  lender  can  reason- 
ably ascertain  this,  then  apparent  necessity  does  not  exist  and 
owners  are  not  bound i.  279,  280 

bottomry  bond  invalid  where  master  can  reasonably  communi- 
cate with  owners i.  285 

insolvency  of  owner  does  not  excuse,  communication  should  then 

be  with  his  assignees i.  285 

master  may  become  ex  necessitate  agent  of  shipper  to  transship 

cargo,  though  representing  conflicting  interest  in  ship-owner  .       i.  288 

when  master  makes  justifiable  sale  of  foreign  vessel,  title  passes 

to  purchaser  without  necessity  for  bill  of  sale i.  289 

law  of  the  United  States  requiring  the  register  to  be  inserted  in 
bill  of  sale  applies  only  to  American  ships ;  it  has  no  applica- 
tion to  foreign  vessel  sold  by  master  by  necessity i.  290 

master's  sale  under  stringent  necessity  is  binding  on  insurers,  but 

only  so  where  no  other  reasonable  alternative  left  him     ...       i.  290 

the  master  has  a  maritime  lien  for  his  expenditure  for  necessaries, 

even  against  feo«d^^/e  purchaser  of  ship i.  290 

when  vessel  is  abroad,  master  is  agent  of  owners  and  can  make 

binding  contracts  for  freight i.  290 

but  when  owner  on  hand  and  attending  to  such  matters,  ship's 

master  has  no  such  power i.  290 

but  where  owner  is  acting  only  as  supercargo,  master's  power  is 

not  affected i.  290 

and  the  master  may  be  both  agent  of  owners  to  deliver  cargo  and 

of  purchaser  to  receive  it i.  290 

master,  as  owners'  agent,  has  power  to  incur  necessary  expense 

to  save  sunken  vessel i.  291 

but  not  to  pay  claims  against  owners  before  he  became  master    .       i.  291 

where  master  is  owner  pro  hac  vice,  he  is  alone  responsible  for  the 

supplies  he  purchases i.  291 

unless  where  owner's  authority  otherwise  may  be  implied  .     .     .       i.  291 

generally  w'here  charterer  controls  vessel  and  master,  charterer 

alone  responsible  for  master's  acts i  291 

charterer  then  becomes  owner  pro  Aac  rice i.  291 

shipper,  though,  has  a  lien  on  the  vessel  under  charterer's  bill  of 

lading i.  291 

and  where  vessel  in  distress,  lien  may  be  created  on  ship  for  neces- 
sary Supplies  to  relieve  her i.  291 

master's  purchase  in  foreign  port  of  ship  generally  considered 

that  of  the  owners i.  292 

cannot  himself  purchase  where  he  directs  the  sale,  and  doubt- 
ful if  he  can  do  so  at  judicial  sale i  292 

where  circumstances  justify  transfer  of  vessel  to  preserve  her 
from  plot  for  her  capture,  master  has  power  to  make  the 
transfer •     .       i-  292 

only  controlling  necessity  will  justify  master  in  selling  oil  of 
whaling  ship,  or  of  shipping  it  to  a  market,  without  instruc- 
tions from  owner i.  292 

steward  in  the  habit  of  purchasing  supplies  for  steamer  held  to 
have  power  to  bind  owners  for  further  purchases,  notwithstand- 
ing arrangements  otherwise  between  owners  and  steward    .     .       i.  292 


ANALYTICAL    INDEX.  803 

[References  are  to  both  text  and  notes  ] 

SHIP-MASTER—  (CoH/mueJ). 

mere  possession  of  goods  in  ship  gives  master  no  power  to  sell 

them,  unless  constituted  agent  or  necessity  arises i.  292 

master's  duty,  ou  ship  becoming  disabled,  is  to  forward  cargo  if 

he  can i.  292,  293 

and  has  no  right  to  sell  at  port  of  necessity,  if  he  can  forward     .       i.  29-i 

and  where  he  re-ships  goods  to  his  own  order,  and  they  are  sold 
by  his  agent,  no  property  in  the  goods  passes  to  tlie  purchaser 
though  paying  bond  fide  price  for  the  goods i.  29o 

where  goods  are  transshipped  by  necessity  they  are  liable  for  the 

increased  freight,  if  any i.  293 

on  wrongful  capture  of  vessel,  master,  as  agent  of  necessity,  rep- 
resents all  interests  involved,  as  owners,  freighters,  and  insur- 
ers, at  their  common  charge i.  293 

as  to  duty  of  master  and  crew  in  case  of  capture  of  ship,  and  as 

to  relations  arising  therefrom i.  293 

ship-owner  may  elect  to  allow  master  to  purchase  ship  for  liini- 

self i.  405 

ship-masters  fraudulently  signing  bills  of  lading  for  goods  not  re- 
ceived    ii-  1-74 

(See  Railway  Freight  Receipts.) 

ship's  contract  for  through  carriage  of  goods ii.  75-215 

(See  Railway  Contracts.) 
SPECIAL   DAMAGES.     (See  Action  ;  Measure  of  Damages.) 

set-off  not  a  good  plea,  against  a  claim  for i.  23 

SPECIFIC   GOODS.     (See   Action;   Definitions;   Indebitatus 
Assumpsit;    Sale) 

after  time  for  delivery  of  goods,  to  be  paid  for  other  goods,  has 

elapsed,  contract  is  turned  into  a  money  debt i.  21 

but  an  action  for  special  damages,  on  principle,  is  also  maintain- 
able   i.  21.  22 

where  not  delivered  at  time  agreed  on,  held  that  a  note  for  a  sum 
certain,  payable  in  specific  goods,  becomes  a  liquidated  sum, 
and  the  goods  may  be  refused i.  21 

Blackburn's  statement  that  property  in  goods  cannot  pass  until 

the  specific  individual  goods  are  agreed  on,  doubted  ....  i.  27 

agreement  enforced  to  pay  debt  in  specific  goods i.  27-29 

mortgagee's  agreement  to  receive  specific  goods  in  payment  of 

mortgage,  affirmed  by  Supreme  Court  of  the  United  State.s     .  i.  29,  30 

payment  in,  is  good  accord  and  satisfaction i-  29 

extinguishes  the  debt  and  is  pleadable  in  bar  of  tiie  action      .     .         i.  29 

where  accepted  in  satisfaction  of  debt  court  will  not  estimate 

their  value •  29 

STATUTE   OF   FRAUDS.     (See  Frauds,  Statute  of.) 
STATUTE  OF  LIMITATIONS. 

where  right  of  election  in  bailee  to  convert  bailment  intfl  salo, 
statute  begins  to  run  at  time  of  election,  action  accruing  then 

is  not  bar  as  to  claims  against  married  women's  separate  estate 
for  money  for  necessaries • 

applies  where  action  is  not  to  rescind  contract,  but  is  in  nature 
of  action  for  deceit ■     • 

statute  only  runs  from  time  of  order  of  court  when  order  made 
for  call  of  payment  on  shares  of  stock 


1(K) 

2(t5 
314 
392 


804  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

STATUTE    OF   LIMITATIONS  — (Co?U»meJ). 

runs  as  against  coupons  from  their  due  date  irrespective  of  date 

of  bonds i.  395 

•where  there  is  an  agreement  to  receive  services  or  goods  in  part 
payment,  and  they  are  so  received  and  taken,  the  case  is  taken 
out  of  the  statute ii.  272,  304 

where  anything  is  received,  upon  agreement,  in  reduction  of  a 
debt,  it  takes  the  case  out  of  the  Statute  of  Limitations    ii.  273,  274, 

304 
(See  Barter.) 

an  agreement  in  writing  that  an  amount  shall  be  credited  is  not 

a  payment  to  satisfy  the  statute  until  actually  credited    ...      ii.  308 
(See  P]arnkst  or  Part  Payment.) 

the  payment  must  be  made  on  account  of  the  debt  for  which  the 

action  is  brought,  and  as  a  part  payment  of  a  greater  debt   .     .     ii.  308 

cases  under  the  statute ii.  309 

STOCKliOLDP^RS.  (See  Corporation;  Directors  of  Compa- 
nies; English  Companies  Acts;  Incorporated  Compa- 
nies in  the  United  States  ) 

ratification  of  acts  of  directors  by  stockholders  estops  them  from 

setting  aside  such  acts  as  being  in  excess  of  directors'  authority      i.  296 

have  larger  power  than  directors  in  purchase  of  company's  bonds 

or  other  liabilities i.  296 

no  rule  to  prohibit  shareholder  from  dealing  with  company     .     .       i.  296 

stockholder   knowingly   purchasing    stock    illegally   issued   and 

voting  for  directors  is  concluded  by  his  acts i.  297 

minority  of  stockholders  can  sustain  proceedings  for  fraud  against 

company  and  others  participating i.  297 

but  they  will  lose  this  right  by  unreasonable  delay i.  297 

usually  the  directors,  as  agents  of  the  company,  are  responsible 
to  it  for  official  misconduct  and  fraud,  and  not  to  action  of  in- 
dividual stockholders i.  297 

before  an  individual  stockholder  can  set  aside  proceedings  of  com- 
pany he  must  show  substantial  grievance,  and  exhaustion  of 
efforts  with  the  company  itself  for  relief i.  297-300 

relation  of  trustees  and  cestuis  que  trm^t  not  created  between 
stockholders  and  corporation,  but  exists  between  directors  and 
stockholders i.  298 

directors  are  only  liable  as  between  themselves  and  stockholders 

where  there  has  been  negligence  or  fraud i.  298 

purchases  by  directors,  as  trustees  of  stockholders,  may  be  set 

aside  at  will  of  beneficiaries i.  299 

and  sales  of  corporate  property  are  set  aside  where  directors  are 

interested  therein i-  299 

generally  stockholders  may  purchase i-  299 

and  where  matter  void  of  fraud,  director's  purchase  may  be  rati- 
fied by  stockholders i-  299 

said  that  ratification  of  directors'  acts  cannot  be  by  majority  of 

stockholders i-  299 

but,  generally,  in  absence  of  fraud,  it  can  be i.  299 

majority's  powers  extend  to  all  business  of  company,  but  not  to 

matters  beyond  its  powers i  299,  300 

directors,  as  stockholders,  not  even  quasi  trustees i.  300 


ANALYTICAL    INDEX.  805 

[References  are  to  both  text  and  notes.] 

STOCKHOLDERS  — (Con/mwefO- 

where  corporation  is  acting  beyond  its  power  equity  will  interfere 
on  behalf  of  single  stockholder,  but  within  its  powers  majority 

governs i.  300 

as  to  rights  of  minorities i.  300 

stockholders  may  repudiate  as  fraudulent,  contract  between  com- 
pany and  another  company  in  which  their  directors  are  in- 
terested      i.  302 

single  stockholder  has  same  rights  against  corporation  for  protec- 
tion of  individual  rights  as  third  party i.  302 

but  only  in  extreme  case  can   act  for   corporation's  protection 

against  acts  of  third  parties i.  302 

no  ground  for  stockholders,  who  refused  to  aid  in  paying  debt 
of  company,  objecting  to  fair,  open  purchase  by  director,  of 
company's  property,  because  purchase  resulted  beneficially  to 
purchasing  director i.  306 

interesting  Canadian  case  where  Supreme  Court  of  Canada  held 
(reversed  by  Privy  Council)  that  director  could  not  vote  as 
stockholder  to  sustain  hondjide  contract  between  him  and  the 
company,  and  that  such  contract  was  invalid i.  30R 

unsoundness  of  such  conclusions  shown  by  the  Privy  Council      .       i.  307 
STOPPAGE  IN  TRANSITU.      (See  Acceptance;  Actual  Re- 
ceipt). 

an  agent  paying  his  own  money  for  goods  may  have  right  of  slop- 
page  in  transitu  as  quasi  vendor i.  545 

too  late  to  affirm  unauthorized  acts  of  stoppage  in  transitu  by 

agent,  after  intervention  of  other  rights i.  623,  624 

SUPERINTENDENT. 

where  work  to  be  approved  by,  sub-contractors  not  affected  by 

disapproval  of,  where  they  have  performed  their  contract   .     .       i.  306 
TRADE. 

includes  buying,  and  selling,  and  exchanging  or  commerce,  and 

traffic  generally i.  4 

TROVER.     (See  Principal  and  Agent.) 

unsound  proposition  by  Lord  Chelmsford  as  to  conversion  by  in- 
nocent third  party  of  goods  purchased  from  one  obtaining 
them  fraudulently i-  549 

•where,  though  fraud,  title  passes  to  the  party  committing  the 
fraud,  innocent  third  party  may  obtain  good  title,  so  that 
trover  will  not  lie  against  him i-  54f) 

doctrine  as  to  conversion  fully  considered i-  549-557 

TRUST.     (See  Evidence;  Fiduciary  Relations;  Gift;  Mar- 
ried Women;  Principal  and  Agent.) 

not  where  property  in  goods  passes  absolutely  for  a  price;  a  sale 

then i-  1'^ 

trusts  in  married  women's  estates  created  in  equity i-  20U 

Statute  of  Limitations  not  bar  to  claini  against,  for  money  for 

necessaries '•  -^'' 

to  make  husband  trustee  for  wife,  clear  evidence  required  .     .     .       i.  225 

but  trust  raised  in  husband,  even  in  gifts  of  him  to  wife,  where 

intention  clear,  where  no  other  is  interposed  as  tru.stee  ...       i.  225 

directors  of  companies  only  quasi  trustees »•  300 

notwithstanding  the  trust  relations,  sale  to  president  by  directors 


806  ANALYTICAL    INDEX. 

'    [References  are  to  both  text  and  notes.] 

TRV  ST— (Continued). 

of  company  for  benefit  of  company,  and  for  full  value,  sus- 
tained   i.  303 

80  bond  and  mortgage  for  necessary  loan  to  company  by  directors 

authorized  by  stockholders,  good i.  303,  304 

■where  notice  of  trust  on  face  of  stock-certificates,  purchases  are 

affected  by  the  trust i.  405 

v?here  notice  of  trust,  purchaser  is  put  on  inquiry  as  to  its  nature       i.  405 
goods  purchased  by  agent  with  principal's  money  are  impressed 

with  a  trust  even  in  hands  of  agent's  assignee  in  bankruptcy  .       i.  547 
TRUSTEES   AND  CESTUiS   QUE  TRUST.     (See  Dikectors; 

Fiduciary  Relations;   Stockholders.) 
ULTRA  VIRES. 

acts  of  a  company  under  English  Companies'  Acts,  beyond  scope 
of  memorandum  of   association,  as   buying   its  own  shares, 

ultra  vires i.  321 

UNSOUND  DECISION.     (See  Free  on  Board;  Gift;  Infants; 
Married  Women  ;  Rescission;  Sale;   Void  and  Void- 
able.) 
USAGE.     (See  Corporation;  Custom;  Principal  and  Agent.) 
VOID  AND  VOIDABLE.    (See  Drunkards;   Fiduciary  Rela- 
tions; Idiots;  Infants  ;  Lunatics;  Married  Women.) 
confusion  existing  between  these  terras,  "  void  "  being  often  used 

where  "  voidable  "  only  is  meant i.  110 

infant's  deed  voidable,  and  not  void,  as  are  all  his  other  cotitracts 

except  those  for  necessaries i.  122-127 

how  his  acts  may  be  avoided i.  122-127 

infant's  contract  being  voidable  and  not  void,  he  is  liable  as  con- 
tributor on  selling  part  of  the  stock  after  majority,  and  allow- 
ing his  name  to  be  placed  on  the  list i.  127 

lunatic's  contracts  voidable,  and  not  void i.  142 

as  are  those  of  idiots  before  inquest  found i.  14G 

married  women's  contracts  absolutely  void,  and  therefore  incapa- 
ble of  ratification i.  149 

mistake  by  English  judges  as  between  void  and  voidable  ...       i.  159 

another  instance,  as  to  the  contract  of  a  lunatic i.  191 

where  contract  of  directors  of  company  with  another  company  in 
which  they  are  interested  is  fraudulent,  the  contract  is  void- 
able, and  may  be  lepudiated i.  302 

director's  contract  with  company  may  be  affirmed  by  stock- 
holders        1.  306-308 

as  may  the  sale  by  hira  of  property  to  the  company  after  latter 

have  full  knowledge  of  facts i.  308-310 

agreement  induced  by  fraud  is  not  void,  but  voidable  only  at  will 

of  party  defrauded i.  313-314 

but  where  not  avoided,  other  interests  may  arise  to  make  it 

binding  on  contractee i.  328-330 

contract  voidable  for  fraud  is  valid  till  rescinded i.  341 

transactions  between  trustee  and  cestui  que  trust  are  voidable  only 

at  the  election  of  the  latter i.  455,  463 

such  transactions  are  not  absolutely  void i.  463 

holding  of  the  United  States  Supreme  Court  contra,  unsound  .     .       i.  463 
and  not  sustained  by  the  authority  they  cite i.  463,  464 


ANALYTICAL   INDEX.  807 

[References  are  to  both  text  and  notes.] 

VOID    AND   YOID ABLE  — (Continued). 

such  contracts  may  be  ratified  at  tlie  will  of  the  cestui  que  trust, 

sui  Juris i.  464 

and  will  not  be  avoided  at  the  will  of  the  trustee i.  465 

numerous  cases  stated  in  which  such  transactions  have  been  rati- 
fied by  cestui  que  trust i.  464,  465 

and  laches  on  the  part  of  the  cestui  que  tnist,  -with  full  knowledge, 

has  been  held  to  amount  to  confirmation  and  acquiescence  .    i.  464,  465 

but  length  of  time  will  not  amount  to  acquiescence  unless  with 

knowledge  that  trustee  was  a  purchaser i.  465 

fraudulent  sale  voidable,  when  subject  not  transferred  to  inno- 
cent third  party,  where  property  has  passed i.  549,  550 

but  latter  takes  no  title  where  property  did  not  pass  to  fraudulent 

party i.  549,  550 

decree  of  a  judge  sitting  in  a  case  in  which  he  has  an  interest  is 

voidable,  and  will  be  set  aside i.  622 

WAGES. 

payment  prohibited,  in  England,  in  goods  or  otherwise  than  in 

current  coin  of  the  lealm i.  25 

conviction  sustained  where  note  for  goods  given  within  jurisdic- 
tion of  convicting  justices,  though  shop  where  goods  were  to  be 

delivered  was  not i.  25 

WAIVER.      (See   Allotment  of   Sharks;    Ratification;   Re- 
scission.) 
WORK   AND  LABOR.     (See  Frauds,  Statute  of.) 

past  or  subsequent,  may  pay  for  goods i.  21 

labor  performed  for  land  not  recoverable  in  money  unless  con- 
veyance of  land  refused   i.  2.3,21 

contracts  for  work  and  labor  not  within  the  17th  section  of  the 

Statute  of  Frauds ii.  253 

count  for  work  and  labor  will  lie  where  the  work  is  done  on  the 
plaintiff's  own  materials,  and  in  which  no  property  passes  un- 
til completion  and  acceptance ii.  253,  254 

otherwise  where  the  work  is  done  on  the  materials  of  the  otlier 

party ii.  254 

but  it  lies  where  the  work  done  is  on  a  subject  that  is  not  the 
subject  of  a  sale,  as  in  using  skill  on  part  of  a  patented 
article  . ii.  254,  255 

but  it  does  not  lie  where,  after  completion  of  the  work,  tliere 
has  been  an  appropriation  of  the  article,  and  an  assent 
thereto ii.  2')'>,  250 

trover  for  the  article  will  there  lie  by  the  vendee  against  the 

vendor's  assignee ii.  25.'),  256 

■while  the  article  remains  unfinished  the  property  does  not  pass    .      ii.  256 

count  for  work  and  labor  and  materials,  and  not  for  goods  sold 
and  delivered,  lies  for  building  an  engine  and  fixing  it  tfj  de- 
fendant's premises ii.  250,  257 

as  it  does  for  work  and  labor,  and  materials,  in  the  construction 

of  a  fixod  building ii.  2."i7 

count  for  goods  sold  and  delivered  only  lies  where  the  property 

passes ii.  257,  2.")8 

count  for  work  and  labor  lies  for  printing  a  treatise  for  the  author, 

and  is  not  within  the  .statute ii  258 


808  ANALYTICAL   INDEX. 

[References  are  to  both  text  and  notes.] 

WORK   AND   LAHOR  —  iConlinued). 

and  so  where  the  essence  of  the  contract  is  for  work  and  labor, 

and  the  materials  furnished  are  merely  ancillary     .     .     .     .  ii.  258,  259 

Atkinson  v.  Bell  is  distinguished  as  the  case  of  an  order  for 
goods  to  be  manufactured,  on  the  completion  and  acceptance 
of  which  the  action  is  for  goods  sold  and  delivered      .     .     .  ii.  258-260 

the  cases  and  the  subject,  containing  irreconcilable  dicta,  dis- 
cussed   ii.  260,  261 

where  the  work  is  done  on  the  materials  of  the  employer  so  that 

the  property  remains  vested  in  him,  work  and  labor  lies       .     .      ii.  260 

but  where  the  property  remains  in  the  maker,  outside  of  express 
contracts  for  work  and  labor,  or  where  such  a  contract  is  to  be 
implied,  and  the  subject  is  the  subject  of  a  sale,  the  contract  is 
within  the  17th  section  of  the  statute ii.  261 

this  deduction  sustained  in  Lee  v.  Griffin  in  the  extreme  case  of 
a  contract  for  making  two  sets  of  teeth,  which  was  held  to 
come  within  the  17th  section  of  the  statute ii.  261,  262 

the  cases  further  reviewed  sustaining  the  above  conclusions     .  ii.  262-264 


University  Press  :  John  Wilson  &  Son,  Cambridge. 


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